Note for Open Educational Resources

Fair Dealing is the legal doctrine that allows use of copyright protected materials without requiring the permission of the creator or paying royalties in certain circumstances. A Fair Dealing use must fit one of the prescribed purposes (including education, research, private study, criticism, review, parody, satire, and news reporting) in s. 29 of the Copyright Act, and on a balance the use must be fair under a six-factor test created by the Supreme Court of Canada. 

Fair Dealing Guidelines apply to a set of scenarios which have been reviewed and considered by the institution issuing the Guidelines. For example, the UM Copyright Guidelines specifically apply to using copyright protected materials for teaching students and educational purposes at the University of Manitoba. These guidelines are not meant to apply broadly to different contexts beyond their original intent.

Codes of Best Practice provide principles and considerations for copyright users to consult as interpretational devices as they determine whether Fair Dealing may be supported for a use. Codes of Best Practice typically apply to specific scenarios, such as OERs, poetry, audio-visual use, etc. There are no specific percentages or amounts of a work that are suggested as a best practice for Fair Dealing in an OER, instead they provide an analytical framework for Fair Dealing use.  The creator or adapter of the OER can review the principles, considerations, and challenging cases, and determine whether they assess their use as conforming to best practices stated in the Code. Challenging cases may urge the creator/adapter to get legal advice prior to applying Fair Dealing. 

Fair Dealing, as a legal test, is always applied in a factually and situationally specific manner. Context matters when considering the use of Fair Dealing, and the context of different Codes of Best Practices and Guidelines may not be interchangeable. For example, a Guideline for use of Fair Dealing in teaching students may not directly apply to the creation of an OER, just as a Code of Best Practices about audio-visual materials may not directly apply to poetry.

As a creator or adapter of OER it is important that if you choose to use Fair Dealing content you carefully assess the Fair Dealing test. Fair Dealing is a legal test and ultimately only a court can determine whether a use is fair.

If your use does not clearly fit into one of the principles for best practices, is a challenging case, or you are otherwise unsure about applying Fair Dealing to use of materials in an OER, consult with the Copyright Office (um.copyright@umanitoba.ca) for further assistance. If you are creating or adapting an OER (for example, developing a distance education course) on behalf of the University of Manitoba, you should also contact the Copyright Office (um.copyright@umanitoba.ca) for further copyright consultation and review of materials you did not create that you wish to incorporate into your OER.