Limitations on Rights

• Author: Lesley Ellen Harris
• Profession: Lawyer, author, and educator
• Pages: 163-193

163

CHAPTER 10

Limitations on Rights

Seek advice but use your own common sense.

—Yiddish Proverb

What Are Limitations on Rights?

In Chapter 9, we dealt with the rights of authors and copyright hold-

ers. This chapter covers limitations on, or exceptions from, these rights.

Basically, these limitations are certain provisions in the Copyright Act

that allow people to use copyright materials without obtaining the

permission of, and/or paying compensation to, the copyright holder.

The Act sets out many limitations as well as many conditions on these

limitations; this chapter highlights these limitations but does not com-

prehensively discuss each limitation and all conditions relating to these

limitations.

Fair Dealing

What Is Fair Dealing?

The fair dealing

1

provision was originally included in the Canadian

Copyright Act in 1921, at a time when reproducing copyright mate-

rials meant copying out by hand. At the time, the fair dealing provi-

sion applied to the use of quotes and “small” passages for purposes of

private study, research, criticism, review, or news reporting. Of course,

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164 Limitations on Rights

the concept of photocopiers, computers, computer scanners, and the

Internet was not envisioned. However, like other terms and provisions

used in the Copyright Act, fair dealing is being interpreted to meet the

technology of the time.

The term fair dealing is not de ned in the Copyright Act. The word-

ing used in the Act, which may seem straightforward, cannot be inter-

preted on its face. Some court cases have dealt with this concept, but no

single court case clearly establishes what exactly constitutes fair dealing;

this goes to the very nature of fair dealing, which must be determined

on a case-by-case basis on the speci c factors in each case. There is

confusion and discussion as to which activities may be considered fair

dealing. The Act does not set out a percentage of use that is acceptable

under fair dealing. Because of the uncertain nature of fair dealing, users

of copyright material such as librarians, educators, researchers, copyright

compliance o cers, and even creators, all of whom are not copyright

experts, must decide for themselves as to whether their activities would

be considered fair by a judge in a court of law.

Although the law in this area must be interpreted on a case-by-case

basis to your particular circumstances, there is some guidance as to what

constitutes fair dealing. To begin, in order for something to constitute

fair dealing, it must  t under one of the purposes listed in the fair deal-

ing provision of the Act: research; private study; education; parody; satire;

criticism; review; or news reporting. If the use falls within one of the

purposes, the next step is to assess whether the dealing is “f air.”

Determining Whether Fair Dealing Applies to

Your Situation

To make a determination as to whether or not a cer tain activity might

constitute fair dealing, you should  rst consider whether a substan-

tial part of a work is being copied. One must  rst establish this factor

because all the rights in the Act apply to using a substantial part of a

work. If anything less than a substantial part of a work is being used,

then the copyright owner has no right to prevent its use. Remember

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