"The Copyright Act does not define what will be 'fair'; whether something is fair is a question of fact and depends on the facts of each case" (emphasis added) (par. 52).
"It is impossible to define what is ‘fair dealing’. It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be a fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression" (emphasis added) (Hubbard v. Vosper qtd. par. 52).
The Supreme Court "proposed that the following factors be considered in assessing whether a dealing was fair: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work. Although these considerations will not all arise in every case of fair dealing, this list of factors provides a useful analytical framework to govern determinations of fairness in future cases" (emphasis added) (par. 53).
(i) The Purpose of the Dealing
"[A]llowable purposes should not be given a restrictive interpretation or this could result in the undue restriction of users' rights" (emphasis added) (par. 54).
(ii) The Character of the Dealing
"If multiple copies of works are being widely distributed, this will tend to be unfair. If, however, a single copy of a work is used for a specific legitimate purpose, then it may be easier to conclude that it was a fair dealing. If the copy of the work is destroyed after it is used for its specific intended purpose, this may also favour a finding of fairness" (par. 55).
(iii) The Amount of the Dealing
"Both the amount of the dealing and importance of the work allegedly infringed should be considered in assessing fairness. If the amount taken from a work is trivial, the fair dealing analysis need not be undertaken at all because the court will have concluded that there was no copyright infringement. . . . [T]he quantity of the work taken will not be determinative of fairness, but it can help in the determination. It may be possible to deal fairly with a whole work. . . . [T]here might be no other way to criticize or review certain types of works such as photographs. . . . The amount taken may also be more or less fair depending on the purpose. For example, for the purpose of research or private study, it may be essential to copy an entire academic article" (emphasis added) (par. 56).
(iv) Alternatives to the Dealing
"If there is a non-copyrighted equivalent of the work that could have been used instead of the copyrighted work, this should be considered by the court. . . . [I]t will also be useful for courts to attempt to determine whether the dealing was reasonably necessary to achieve the ultimate purpose" (par. 57).
"The availability of a licence is not relevant to deciding whether a dealing has been fair. As discussed, fair dealing is an integral part of the scheme of copyright law in Canada. Any act falling within the fair dealing exception will not infringe copyright. If a copyright owner were allowed to license people to use its work and then point to a person's decision not to obtain a licence as proof that his or her dealings were not fair, this would extend the scope of the owner's monopoly over the use of his or her work in a manner that would not be consistent with the Copyright Act's balance between owner's rights and user's interests" (emphasis added) (par. 70).
(v) The Nature of the Work
"Although certainly not determinative, if a work has not been published, the dealing may be more fair in that its reproduction with acknowledgement could lead to a wider public dissemination of the work" (par. 58).
(vi) Effect of the Dealing on the Work
"If the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair. Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair" (emphasis added) (par. 59).
"The fair dealing exception, like other exceptions in the Copyright Act, is a user's right. In order to maintain the proper balance between the rights of a copyright owner and users' interests, it must not be interpreted restrictively" (par. 48).
CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 Supreme Court of Canada [decision number] 13
"[T]he 'amount' factor is . . . an examination of the proportion between the excerpted copy and the entire work, not the overall quantity of what is disseminated" (emphasis added) (par. 29).
Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 Supreme Court of Canada [decision number] 37
"[T]he fair-dealing factors are not criteria or elements – they are factors. That is, they are useful considerations in a fair-dealing analysis, not conditions that must be met for a dealing to be fair. It is also important to note that since fair dealing involves the weighting of factors, the presence of a single factor that would tend to make a dealing unfair does not automatically make that dealing unfair" (emphasis added) (par. 394).
Decision of the Board. Copyright Board of Canada, 22 May 2015
"In mandating a generous interpretation of the fair dealing purposes, including 'research', the Court in CCH created a relatively low threshold for the first step so that the analytical heavy-hitting is done in determining whether the dealing was fair" (par. 27).
Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 Supreme Court of Canada [decision number] 36
"In the aftermath of years of public debate and landmark jurisprudence, Canada now has a fair use provision in everything but name only, with analysis rightly focused on whether the use of or dealing with a work is fair, not whether it fits within one of the fair dealing categories or purposes" (181).
"[T]he key difference between fair use and fair dealing lies in the circumscribed purposes found under fair dealing. Unlike the open-ended fair use model, fair dealing models typically identify specific categories or purposes for which fair dealing is permitted. The model creates a two-stage analysis: first, whether the intended use qualifies for one of the permitted purposes, and second, whether the use itself meets the fairness criteria. By contrast, fair use raises only the second-stage analysis, since there are no statutory limitations on permitted purposes" (158).
Geist, Michael. "Fairness Found: How Canada Quietly Shifted from Fair Dealing to Fair Use." The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law, edited by Michael Geist, U of Ottawa P, 2013, pp. 157-186