Limitations on Rights

AuthorLesley Ellen Harris
ProfessionLawyer, author, and educator
Pages163-193
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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