FAQs for Faculty

Frequently asked questions about Fair Dealing guidelines

Under what circumstances can a faculty member make a copy under the Fair Dealing guidelines?

A faculty member can make a copy under the circumstances described in parts II, III, IV and V of the guidelines. Part V of the guidelines permits a faculty member to make a fair dealing copy for his or her own personal research, private study, review, criticism or news reporting in accordance with the Copying Guidelines.
NOTE: The Fair Dealing guidelines do not permit a faculty member to post a digital copy to a learning management system (LMS) or a course website.

Do the Fair Dealing guidelines permit a faculty member to copy or scan a work with the intention of projecting an image of the copy in a classroom using a projector or other device?

The guidelines do not address this situation. However, making such a copy is permitted under section 29.4(1)(b) of the Copyright Act. It is worth noting that the Fair Dealing guidelines do not prohibit activities that are permitted within other exceptions in the Copyright Act.

Do the Fair Dealing guidelines permit making multiple copies to hand out to students for review or private study?

No. Mass copying of this nature is not fair dealing and therefore not permitted without the consent of the copyright holder. The Copyright Board of Canada and the Federal Court of Appeal have held that making multiple copies to distribute to students, even for educational purposes, is not permitted under the provisions of Fair Dealing.

Can students in a class assign their fair dealing rights to their professor to enable the professor to make copies to hand out to the students?

No. Under section 30.2 of the Copyright Act, in limited circumstances, a library, archive or museum (as that term is defined in the Act) may do anything on behalf of any person that that person could do under Fair Dealing. However, at no point does the section imply or argue that a university (through a professor) is allowed to make a copy for a student. In the circumstance described in the question, the fair dealing rights cannot be assigned.

Under sections 3(1) and 27(1) of the Copyright Act copyright is infringed if, without the consent of the owner of copyright, a work or any substantial part is reproduced. How is a substantial part determined?

The term “substantial part” is not defined in the Copyright Act. The courts have held that both the quality and the quantity of what is copied must be considered, with the quality being more important than the quantity. In considering what constitutes a substantial part a court will consider whether the alleged infringer has taken the distinct traits of the original work.

• The Copyright Board has held that one percent of literary works comprising, in total, 175 pages did not constitute a substantial part of the works because the one percent did not constitute the central element of the works, the proposed use was different from that contemplated by the author, the one percent would in no way undermine the market for the original works, and the one percent was not an essential characteristic of the works.
• In another case, the Copyright Board held that, from a qualitative perspective, eight excerpts comprising 325 words out of a 342 page book constituted a substantial part. The 325 words, all taken from a single chapter of the book, were the author’s individual perspective of his participation in the Second World War. The Board held that reproducing the 325 words would appropriate the author’s knowledge, time and talent.

Can a copy be made where it is prohibited by the fair dealing guidelines, but is expressly permitted under an agreement with the publisher?

Yes. Separate agreements or licenses with publishers always take precedence over the terms described in the Fair Dealing guidelines. However, the reverse is not true. If a copy can be made under the Fair Dealing guidelines, but is prohibited under an agreement with the publisher, the provisions of the agreement apply and making the copy is prohibited.

Section 2 of the fair dealing guidelines states that “a copy may only be made from a lawful copy of the work in the possession of the university”. Would this permit making a copy from an original book obtained by the university from a faculty member or through interlibrary loan?

Yes. There is no requirement that the university own the material from which the copy is made.

Sections 3 and 4 of the fair dealing guidelines set limits on the percentage of a work that may be copied. Can copies in excess of those percentages be made under the guidelines?

Yes, but only in circumstances where a determination has been made under section 10 of the guidelines by the Copyright Officer.

Why is there a restriction in paragraphs 16(b) and 17(b) of the Fair Dealing guidelines on the amount of material that can be copied for library reserve?

The limitation is included to prohibit the accumulation of a complete corpus of copied materials under the guise of library reserve. The copies placed on reserve for a course must be supplemental or optional reading material and cannot, in purely physical terms, exceed 25% of the amount of material that has been assigned as required reading for the same course.

How is the permissible proportion of supplementary reading that may be placed on library reserve to be calculated under sections 16(b) and 17(b) of the fair dealing guidelines?

The amount of supplemental reading material placed on reserve for a course cannot exceed 25% of the amount of material that has been assigned as required reading for the same course. For example, if there are 8 articles specified as required reading for a course, under the guidelines copies of no more than 2 articles of supplementary readings may be made for library reserve. Where the course has multiple sections and the required readings differ from one section to another, the supplementary readings for one section must be not be accessible to the students in other sections.

Paragraph 16(f) of the fair dealing guidelines requires that a paper copy made by the library must be destroyed within a reasonable time after the course of instruction for which it was placed on library reserve has ended. Would it be acceptable under the guidelines to return the copy to the professor who provided the copy to the library?

If the professor has made the copy with the consent of the owner of copyright and that copy is placed on library reserve, the guidelines do not apply and the copy may be returned to the professor. Otherwise, the copy must be destroyed. The intent of this requirement is to prevent an individual from assembling a library of copied materials that could be placed on library reserve repeatedly or used for other purposes.

Paragraph 16(f) and other paragraphs in the fair dealing guidelines require that a paper copy be destroyed within a reasonable time. How long is a reasonable time?

The amount of time will depend on university policies and practices and the circumstances. The intent of the requirement is to ensure the copy is used for the purpose for which it was made and that individuals are not accumulating a library of copied materials that will be put to other uses. A month or two after the course for which it was made has concluded would likely be considered a reasonable time.

Can a course pack that was made prior to December 21, 2010 be placed on library reserve after January 1, 2011?

Yes. This issue is not addressed by the Fair Dealing guidelines. It is governed by the terms of the now expired blanket license agreement that the institution had with Access Copyright. In accordance with the terms of the blanket licence agreement there is no restriction on what can be done with paper copies made prior to January 1, 2011.