Exceptions are user rights that allow a user to use (and even modify or adapt) content without the creator or copyright owner's permission. Exception categories include Education exceptions, Library, Archive, and Museum exceptions, Fair Dealing (most common), and many more. Exceptions cannot be applied if there is a "motive of gain" (Copyright Act 29.3(1)).
As these exceptions can be hard to understand and can be narrow in their application, it is better to look at Fair Dealing exceptions first as Fair Dealing is more lenient.
Fair dealing is an exception to Canadian copyright that allows all Canadians to use copyright-protected material for specific purposes. It is one of the more commonly applied user rights. To apply fair dealing, the user needs to apply a two-step process. First, the user must determine if the purpose for using the material falls into one of the allowable uses (research, education, private study, parody, satire, criticism, review, or news reporting). Then the user must determine if the use is "fair" by applying a six-factor test. For more details, see the video and information blocks below.
As a reminder, although fair dealing allows users to use copyrighted work without infringing copyright, it is important to still give credit to the source of the material and the creator, especially for criticism, review, and news reporting.
This work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License. University of Guelph. (2019, June 18). What is Fair Dealing? [Video]. YouTube.
Education Institutions Exceptions
Libraries, Archives, and Museums Exceptions
Machines Installed in Educational Institutions, Libraries, Archives and Museums Exceptions
Libraries, Archives and Museums in Educational Institutions Exception
Step 1: Determining Purpose
The first step is to assess the purpose of use for the copyrighted material. If the use is for research, private study, education, parody, satire, criticism, review, or news reporting, you can continue on to step 2. If not, you need to seek permission to use the material.
Step 2: Evaluate "Fairness"
Step 2 is to evaluate the "fairness" of the proposed use of the material (i.e. There is no "scorecard" for determining fairness as all of the factors have to be considered in relation to each other. Additionally, "no ultimate determination of whether a use is truly 'fair-dealing' can be made until it has been reviewed and decided by a court" (Opening Up Copyright, 2021). However, most situations can be worked through using the six-factor test (see below) to make a reasonable decision as to the use of copyrighted material under the fair dealing exception.
While determining the purpose of using the copyrighted material is determined in Step 1, determining the purpose as it regards to "fairness" is a bit more specific here. As part of the purpose in relation to fairness, you need to consider your motive. If the motive is commercial, the scale would tip to less fair.
For character, as questions such as how is the material being dealt with? Are multiple copies being made, or is its use widespread? Will they be destroyed after use? When evaluating character, the user should be considered to justify the need for multiple copies. For example, you might need one copy for each student, but each is one user. As well, will the material be behind digital locks, such as an LMS like Brightspace?
Amount considers the proportion of the work that is to be copied. This should be considered in relation to both purpose and character. For example, the whole article might be necessary for research purposes, but you wouldn't need a full text for a review.
For alternatives, consider whether a non-copyright-protected work could achieve the same goal. Why is this copyrighted work necessary? Do you need to provide the whole work or could a link to a work suffice?
Nature is the relation of the copied work and its distribution. For example, copying unpublished works may be fairer if it means that the work would be more widely disseminated with attribution for the creator. At the same time, if a work was confidential and shared widely, it would be less fair.
Effect considers the effect of dealing on the market. Will the copy being in competition with the original? At times it may be in competition with the original, but if the new work or copy takes only what it needs from the original (for a review or criticism, for example) then it may still be considered fair.
Another popular term in copyright, and similar to Fair Dealing, is "Fair Use." Fair Use is the American equivalent of Fair Dealing and allows users to use copyrighted works "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" (emphasis added; US Copyright Act, section 107) without infringing copyright. However, the American version has more flexibility than the Canadian version due to the "such as." This distinction is important to keep in mind when dealing with Fair Dealing.
Forsythe, G. (2012). Copyright, Course Materials and YOU! [Infographic].
