Fair Dealing for Criticism or Review (Canada) – FDCritRev (CAN)
Description
This work has been reproduced for the purpose of criticism or review and has been dealt with fairly, based on Canadian jurisprudence.
Explanation
Section 29.1 of the Copyright Act specifies that:
Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned:
- the source; and
- if given in the source, the name of the
- author, in the case of a work,
- performer, in the case of a performer’s performance,
- maker, in the case of a sound recording, or
- broadcaster, in the case of a communication signal.
Mention of the source and its author, etc. is provided within the attribution.
The Copyright Act does not define fair dealing; however, the Supreme Court of Canada in CCH v. Law Society of Upper Canada provided a non-exhaustive list of six factors that may be relevant to determine whether a dealing was fair. The table below lists these factors with an explanation for each.
It is important to note that in the final analysis, all relevant factors must be weighed together holistically to determine the overall fairness of the dealing.
| Factor | Explanation |
|---|---|
| Purpose of the Dealing | The objective purpose(s) of the dealing. Purposes aligned with non-commercial uses will tend to be fairer. |
| Character of the Dealing | The way the dealing was conducted. For example, were many copies widely distributed, or was a single copy used and then destroyed following the completion of its purpose. Industry standards around fair practices may influence this factor. |
| Amount of the Dealing | The proportion of the work used in the dealing. Dealings that use an amount aligned with the overall purpose will tend to be fairer. For example, some works of criticism will require reproducing a work in its entirety. This factor is does not consider the aggregate number of copies made; that is considered by the 'character of the dealing' factor. |
| Alternatives to the Dealing | The possibility of meeting the purpose without using a work protected by copyright. For example, if a work in the public domain could have been substituted, or the dealing was not necessary to meet the purpose of the dealing, this will tend to make the dealing less fair. The availability of a licence from the copyright holder is not of consideration for this factor. |
| Nature of the Work | The appropriateness of the work for the dealing. For example, dealings with unpublished works meant for public consumption will tend to be fairer, but dealings with confidential works will tend to be less fair. |
| Effects of the Dealing on the Work | The impact of the dealing on the market for the work. Dealings that compete with the original work will tend to be less fair. Although this factor is of importance, it is not necessarily the most important factor in determining fairness. |
