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Fair dealing is a doctrine of limitations and exceptions to copyright which is found in many of the common law jurisdictions of the Commonwealth of Nations (which is largely descendant of the former British Empire).
Fair dealing is an enumerated set of possible defenses against an action for infringement of an exclusive right of copyright. Unlike the related United States doctrine of fair use, fair dealing cannot apply to any act which does not fall within one of these categories. In practice, common law courts might rule that actions with a commercial character, which might be naively assumed to fall into one of these categories, were in fact infringements of copyright as fair dealing is not as flexible a concept as the American concept of fair use.
In Australia, the grounds for fair dealing are (sometimes known as the "moral rights" of the copyright holder):
Australia has a deeming provision which guarantees that fair dealing applies if you photocopy either (not more than one chapter), or (less than 10%) of a book or journal (this was a result of a successful lawsuit brought against a university library for "authorisation" of patrons' copyright infringement).
Regarding fair dealing under Crown copyright the Australian Copyright Act 1968, ss.176-178. Section 182A (inserted by Act 154 of 1980, s.23) provides that the copyright, including any prerogative right or privilege of the Crown in the nature of copyright, in Acts, Ordinances, regulations etc., and judgments of Federal or State courts and certain other tribunals, is not infringed by the making, by reprographic reproduction, of one copy of the whole or part of that work for a particular purpose (this does not apply where charge for copy exceeds cost).
Regarding the re-use of copyrighted images or drawings, the Australian Copyright Act does not impose a 10%-limit under its fair dealing provisions for the purpose of research and study. Instead, each and every such use for research or study must be evaluated individually to determine whether it is fair, similar to the notion of fair use in U.S. coypright law. Among the criteria used to determine the fairness of a use are the purpose and character of the dealing, the nature of the work, the possibility of obtaining the work commercially within a reasonable time, the effect of the use on the potential market for the work or on its value, and how much of a work is copied.
The Canadian concept of fair dealing is similar to that in the UK and Australia. The fair dealing clauses of the Canadian Copyright Act allow users to make single copies of portions of works for "research and private study." Unlike the United States where fair use is seen as an allowable infringement, Canada's fair dealing is seen as not an infringement at all.
The 2004 ruling by the Supreme Court of Canada in CCH Canadian Ltd. v. Law Society of Upper Canada has gone far in clarifying the concept of fair dealing in Canada.
In considering fair dealing it makes the following general observation: "It is important to clarify some general considerations about exceptions to copyright infringement. Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. 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. ... 'User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.'"
It then establishes six principal criteria for evaluating fair use.
"These factors may be more or less relevant to assessing the fairness of a dealing depending on the factual context of the allegedly infringing dealing. In some contexts, there may be factors other than those listed here that may help a court decide whether the dealing was fair."
The Association of Universities and Colleges of Canada (AUCC), a well established lobbying group representing the educational sector in Canada is of the opinion that making a copy of the following for the purposes of private study and research is fair dealing:
The AUCC believes that faculty members or students can make a copy of parts of a book or other complete works under fair dealing. No hard or fast rules are available in Canadian law but a rough indicator would be 10% of a complete work. The AUCC also maintains that fair dealing applies not just to photocopying but also to other methods of reproduction – including the making of copies onto slides, microfiche or transparencies. For multiple copies and for copying in excess of the extent mentioned above, AUCC recommends acquiring licences from Access ©, the Canadian Copyright Licensing Agency, one of the copyight licensing societies or copyright collectives in Canada.
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