Fair dealing and other copyright exceptions
The fair dealing exemption in the Copyright Act permits the use of a copyright protected work without permission from the copyright owner or the payment of copyright royalties. Review this page to learn how this exemption is determined and how it applies to a variety of purposes.
Should your desired copying exceed fair dealing allowances, see this list of alternatives or consider other exemptions or user rights available in the Copyright Act.
Definition of fair dealing
The fair dealing exemption in sections 29, 29.1 and 29.2of the Copyright Act is a user right which permits the use of a copyright protected work without permission from the copyright owner or the payment of copyright royalties.
To qualify for fair dealing, two tests must be passed:
- The use or “dealing” must be for a purpose stated in the Copyright Act.
- The dealing must be “fair.”
1. Approved dealing purposes
As listed in the Copyright Act, these are the valid purposes for the use of copyright protected work without permission:
- Private study
- News reporting
Instructors, professors and staff members may communicate and reproduce, in paper or electronic form, short excerpts from a copyright protected work for the purposes noted above.
The Copyright Act requires that when copying or communicating short excerpts for the purpose of news reporting, criticism or review that the source, and the name of the author or creator of the work if provided in the source, must be mentioned.
Beyond the requirements of the Copyright Act, proper attribution or citation when copying any work is required to meet academic integrity obligations.
Fair dealing can apply in a number of circumstances, as long as it is for one of the allowable purposes listed above (e.g., education), even if the allowable purpose is not the sole purpose of the copying. Fair dealing copies for commercial purposes should be avoided.
2. Determining if the dealing is fair
The second test is that the dealing must be “fair.” UM Copyright Guidelines permit faculty members, instructors and staff members to copy and communicate, in paper or electronic form, short excerpts from copyright protected works for any of the eight fair dealing purposes noted above.
The Supreme Court of Canada, in the 2004 CCH v. Law Society case, considered the following factors in determining whether a dealing is fair:
The purpose of the proposed copying. For example, it would likely be fair for students to perform a scene from a modern play in class as part of a literature course, but it would not be fair for the same scene to be performed for the general public in a campus theatre where admission is charged.
The character of the proposed copying, including whether it involves single or multiple copies, and whether the copy is destroyed after it is used for its specific intended purpose. For example, making more copies than the number of students in a class might not be fair, and retaining a copy might be less fair than destroying it after use.
The amount or proportion of the work which is proposed to be copied and the importance of that work. Consider the value of the excerpt in relation to the whole work. For example, it might not be fair to use the integral or central portion of a work, or to copy the complete conclusion from an article. It is advised to copy the minimum amount necessary to serve the fair dealing purpose.
Alternatives to copying the work, including whether there is a non-copyrighted equivalent available. Find a list of alternatives to consider below.
The nature of the work, including whether it is published or unpublished. For example, copying an unpublished work such as a private journal might not be fair.
The effect of the copying on the work, including whether the copy will compete with the commercial market of the original work. For example, copying all the images from a work when those images are available for sale as a group by the publisher might not be fair.
Note that insubstantial amounts (as defined in the Copyright Infringement and Notice-and-Notice sections) do not need to go through the two-step test nor the fair dealing assessment. For example, copying a few sentences or a few paragraphs from a book is likely not a copyright issue. However, it is advised to use the minimal amount and to provide attribution in all cases.
Applying the fairness factors for more than an insubstantial amount can prove challenging. As such, guiding principles were established in relation to defining a short excerpt and applying fair dealing as described below.
What is a short excerpt?
A short excerpt in the context of fair dealing means:
- Up to 10 per cent of a copyright protected work (including a literary work, musical score, sound recording and an audiovisual work)
- One chapter from a book
- A single article from a periodical
- An entire artistic work (including a painting, print, photograph, diagram, drawing, map, chart and plan) from a copyright protected work containing other artistic works
- An entire newspaper article or page
- An entire single poem or musical score from a copyright protected work containing other poems or musical scores
- An entire entry from an encyclopedia, annotated bibliography, dictionary or similar reference work
Exception: Where the copyright protected work is an anthology or collection that contains individually available copyright protected works in their entirety, this guideline may not apply. Consult with the Copyright Office in these situations.
In each case above, no more of the work can be copied than is required to achieve the allowable purpose.
When considering copying or communicating a short excerpt, you can choose the most advantageous of the seven conditions above.
Copying or communicating multiple short excerpts from the same copyright protected work (cumulative copying), with the intention of copying or communicating more than a fair amount, is prohibited. If more than a fair amount is desired, consider seeking copyright permission or purchasing the work.
What cannot be reproduced under fair dealing guidelines
The following resources cannot be reproduced:
- Unpublished works
- Proprietary workbooks, cards, assignment sheets or test and examination pages
- Instruction manuals
- Business cases (unless expressly permitted)
- Newsletters with circulation restricted to fee paying clients or members
Alternatives to consider when fair dealing might not apply
- Use materials you own the copyright in (always check your publishing agreement for copyright restrictions on published works).
- Direct your readers to resources available from UM Libraries.
- Use a link instead of copying electronic resources from UM Libraries or from any internet-based source. The Reading Lists tool in UM Learn can be used to include all your e-resources in a single source.
- Select a book as a required textbook for a course.
- Use a copyright-friendly equivalent, such as a work in the public domain, a work with a Creative Commons licence, or an open access work.
- Contact the UM Bookstore to create a course pack.
- Create a list of references and ask readers to locate the sources independently in the library or online.
Contact us for help with fair dealing
Fair dealing is determined on a case-by-case basis.
For assistance in evaluating what is fair, or to copy or communicate beyond the limits in the UM Copyright Guidelines, contact the Copyright Office. An evaluation will be made based on all relevant circumstances. If necessary, we can provide assistance in considering alternatives or obtaining permission.
Fair dealing exceptions
Find a wide range of topics relating to fair dealing exceptions.
Fair dealing allows a faculty member or instructor, or their proxy, to:
Provide a copy of a short excerpt to students enrolled in a course of study as a handout.
Email a copy of a short excerpt to students enrolled in a course of study.
Post a copy of a short excerpt on a learning management system (such as UM Learn) stored on a secure server or other device that is only accessible by students enrolled in a course of study, unit or program of instruction (e.g., password protected).
In some cases, include a copy of a short excerpt in a course pack sold to students enrolled in a course of study.
Distribute a copy of a short excerpt used in a lecture or classroom presentation to students enrolled in a course of study.
In each case, a copy of the short excerpt may also be provided or made available as required to another faculty member, instructor or to university staff.
As a safeguard to protect the interests of copyright owners, the work from which the copy of the short excerpt is made must be in the lawful possession of the university, faculty member or instructor. This would include a physical work in the collection of UM Libraries or faculty member or instructor. It would also include a borrowed work or a copy that was made based on the fair dealing exemption (for example, through the Libraries’ Document Delivery service).
When a work has been obtained through Document Delivery, refer to the terms included with the requested document. For example, the terms may allow private use only, or prohibit reproducing copies of the document.
For electronic resources, the licence details must be consulted before copying a short excerpt (see Library Licences and Other Licences).
According to fair dealing, a copy of a short excerpt from a print copyright protected work may be made by a UM academic staff member to use in conducting research or to include in a personal collection of research resources.
The member may share a copy of the short excerpt from the print copyright-protected work with other members and students within the university and or another educational institution with whom the member is engaged in collaborative research.
In sharing a copy of the short excerpt, the member may:
- email the copy to the students and other members
- post the copy to a website on a secure server or other device, provided the website is secured (e.g., password protected) and is only accessible by those members and students with whom the member is conducting collaborative research.
When accessing a resource electronically through UM Libraries, refer to the terms of the licence to determine how, or if, the resource may be shared with non-UM collaborative researchers. In many cases, electronic resources may only be shared with other UM community members, and only in specific ways (for example, by linking to the library catalogue record rather than providing a PDF copy of an article).
UM Learn is a learning management system used to share course material. A short excerpt of a copyright protected work may be posted to UM Learn based on the fair dealing exemption if the following safeguards are met:
The learning management system must be operated by or under the control of the University of Manitoba.
The learning management system must be stored on a secure server or other device (e.g., password protected).
The short excerpts posted to the learning management system must only be accessible by students enrolled in the course of study, unit or program of instruction for which the short excerpts have been posted, and by faculty members, instructors or university staff who require access to the learning management system.
To give students the choice of how to access course materials, the same short excerpt may be made available to students through a learning management system, an email, a class handout or in a course pack. However, no more than a short excerpt from a work from across all editions and formats of a copyright protected work may be copied and made available to students during a specific course of study.
- For research projects located in the learning management system which contain short excerpts, access should be provided only to faculty, staff and students participating in the research or providing assistance for the project.
During a specific course of study, multiple short excerpts from the same work which would amount to more than permitted by the fair dealing exemption may not be posted.
- A short excerpt of a work may not be removed and replaced with another short excerpt from the same work which would have the effect of reproducing more than a fair dealing amount of the total work during a specific course of study.
UM Learn displays copyright messages regularly and users must abide by the “Computer Account – Usage Agreement” which includes a copyright component. UM Learn is subject to copyright compliance reviews.
See other sections in the UM Copyright Guidelines for information about more Copyright Act exemptions, library licences, etc. that might apply to material posted to UM Learn.
Upon request, the Copyright Office can verify all your course material to ensure it meets copyright rules.
Audiovisual works include motion picture films, television programs and videos.
Faculty, instructors and staff may copy short excerpts of a copyright protected audiovisual work and communicate those short excerpts to students for research, private study or education, among other fair dealing purposes.
It is permissible to record a short excerpt from a computer, television or projection screen using a video recording device (e.g., a smart phone) or software when the source content has been lawfully accessed and no digital locks or TPMs have been broken.
Musical works and sound recordings
Musical works include musical scores and sheet music. Sound recordings include CDs and other media that contain recorded sound.
UM Copyright Guidelines permit faculty members, instructors and staff to copy short excerpts of copyright-protected musical works and sound recordings and to communicate those short excerpts to students for research, private study or education, among other fair dealing purposes.
Remember that when applying fair dealing to sound recordings you need to consider the individual recorded songs, rather than an album as a whole, when assessing the length of a short excerpt.
It is permissible to reproduce a short excerpt of a sound recording using a recording device (e.g., smart phone) or software when the source content has been lawfully accessed and no digital locks have been broken.
Evaluating the copyright term of musical works and sound recordings is complex, as is determining who the copyright owners are. Contact the Copyright Office for assistance.
Administrative copying includes copying copyright protected works made for one of two purposes:
- the development of a course of study, unit or program offered by the university
- the governance or administration of the university or of a faculty or department of the university
A short excerpt of a copyright protected work may be copied if the fair dealing purpose of the copying is tied to education. For example:
- making a copy of a short excerpt of a copyright protected work and emailing it to members of a faculty or department committee for use in developing a course of study, unit or program
- making a short excerpt of a copyright protected work for the purpose of training administrative staff
In both examples above, distribution should be limited to participants and assistants.
Administrative copying of a short excerpt of a copyright protected work that is made for the governance or administration of the university or a faculty or department of the university may be made. For example:
- copying a short excerpt of a copyright protected work and providing the copies to members of the board of governors or to members of a faculty or department committee for governance or general administrative purposes relating to the operation of the university
The university does not condone copyright infringement by students. Students who copy or communicate copyright protected works should either be certain that copying or communicating the works falls within one of the exemptions in the Copyright Act, that licence terms allow its use, or that permission was obtained from the copyright owner.
The university is not liable for any infringing copies made or communicated by students, including copies made or communicated using copiers or scanners made available by the university.
The university does not have control over students who post content to the internet, including UM Learn, or who attach content to emails. However, students who make or post infringing copies could face disciplinary action for academic misconduct. See Academic integrity for more information.
For copyright information related to graduate students and their theses, see Copyright in thesis or practicum section in Copyright support for students.
Other copyright exceptions
Should your desired copying exceed fair dealing allowances, see this list of alternatives or consider other exemptions or user rights available in the Copyright Act
Exemption for an educational institution
The Copyright Act provides exemptions for the following:
- internet content
- displaying a copyright protected work
- delivering content for online and in-person lessons
- tests or examinations
- performing a copyright protected audiovisual work
- news and commentary
- reproduction of a broadcast
Exemption for a work available through the internet
Section 30.04(1) of the Copyright Act provides an exemption from copyright infringement for copying a copyright protected work available through the internet. The exemption applies to educational institutions and their employees for educational or training purposes and is subject to the following conditions:
- The copy must mention the source of the work and the name of the author, performer, maker and/or broadcaster of the work.
- The copyright protected work or the internet site where it is posted must not be protected by a digital lock (also known as a technical protection measure or TPM) that either restricts access to the work or restricts copying, communicating or performing in public the work.
- There is no clearly visible notice posted on the internet site or on the work that prohibits the copying (note that the use of the copyright symbol by itself does not prevent applying this exemption).
- The person making the copy knows or should have known the work was made available through the internet without the consent of the copyright owner.
Using the exemption under section 30.04(1) allows for an entire work from the internet to be copied or communicated.
Exemption for displaying a work
Section 29.4(1) of the Copyright Act states that it is not an infringement of copyright to reproduce a copyright protected work, or do any other necessary act, in order to display the work on the premises of an educational institution for the purpose of education or training. This exemption extends beyond fair dealing in that it permits the display of more than a short excerpt of a work.
Except for the making of a manual reproduction (e.g., on a white board), the exemption does not apply if copies of the work are available for sale in Canada within a reasonable time, at a reasonable price, and the copies can be located with reasonable effort. For example, if an image bank of artwork is available under a licence, displaying those same images without a licence would likely be infringement.
Exemption for a lesson
Section 30.01 of the Copyright Act provides an exemption for a lesson, namely a presentation (such as PowerPoint) containing copyright protected material in excess of a short excerpt when presented in a classroom or in an online learning environment.
For this exemption to apply to an online learning environment, copies of the lesson must be distributed via a learning management system (such as UM Learn) and must be destroyed within 30 days after students in the course of study receive their final course evaluation.
Since all copies of the presentation (including students' copies) must be destroyed (not merely rendered inaccessible), faculty members and instructors may prefer to apply fair dealing rather than the exemption for a lesson and include a short excerpt only. See the relationship between exemptions below.
Relationship between exemptions: fair dealing, displaying a work, lesson
Fair dealing and the exemptions for displaying a work and a lesson are distinct and separate exemptions in the Copyright Act. Fair dealing may apply in circumstances in which the latter two exemptions also apply.
For example, a faculty member may post a classroom presentation to UM Learn that includes a short excerpt of a copyright protected work. The faculty member can rely on fair dealing for posting the classroom presentation – rather than the exemption – for a lesson and not have to destroy all copies of the classroom presentation within the 30-day period as required by the exemption for a lesson.
However, the faculty member cannot rely on fair dealing if the classroom presentation contains more than a short excerpt of a copyright protected work. Instead, the faculty member must ensure:
- the exemption for a lesson applies
- all copies of the classroom presentation are destroyed within the 30-day period
Because of the destruction requirement, a faculty member may prefer applying fair dealing rather than the exemption for a lesson and only include a short excerpt in a classroom presentation that is to be posted to UM Learn.
As another example, teaching staff may display more than a fair amount in a classroom. However, no more than a fair amount may be posted to UM Learn. To avoid infringement, teaching staff may choose to remove any copyrighted content that exceeds fair dealing from the presentation before uploading the presentation slides to UM Learn.
Exemption for a test or examination
Section 29.4(2) of the Copyright Act allows faculty members and instructors to reproduce, translate, perform or communicate a work required for a test or examination as long the material is not available commercially on the Canadian market within a reasonable time, for a reasonable price and located with reasonable effort. For example, if a bank of exam questions is for sale, the questions should not be copied freely under this exemption for the exam.
If more than a fair dealing amount of a commercially available text is used for a test or exam, the text must be purchased. For example, it would not be permitted to copy more than a fair dealing amount of a novella to use during an examination if the novella is commercially available for a reasonable price, can be obtained within a reasonable time and located with a reasonable effort. Similarly, an instructor cannot create a translation of a text for examination purposes if a translation can be commercially obtained in a reasonable time, for a reasonable price and located with a reasonable effort.
Exemption for a live performance, performing a cinematographic work, sound recording or other subject matter
This exemption pertains to a live performance (e.g., play or recital), performing a cinematographic work (e.g., film), sound recording (e.g., music) or other subject matter (e.g., TV program).
Faculty members, instructors and staff can rely on the exemption in section 29.5 of the Copyright Act for some public performances on the premises of the university for educational or training purposes before an audience consisting primarily of students, instructors, or staff who set curriculum. To use this exemption, the work must either not be an infringing copy or the person responsible for the performance must have no reasonable grounds to believe that it is an infringing copy. The exemption in section 29.5 applies to performing all or any part of a work.
For example, this exemption would allow a class to perform a play, view a film, listen to a musical CD, or watch a television program as it is aired, under the conditions noted above.
To use other types of content from the internet (such as a YouTube video), consider embedding the video in the teaching material or providing a link to students.
Tariff or licence fees must be paid when playing music or showing a film on university premises outside of an educational context. For example, an on-campus wedding social or retirement party with background music would likely incur SOCAN and Re:Sound fees. Similarly, a student group showing a feature film on campus for non-educational purposes would require a licence from Audio-Ciné (ACF), Criterion Pictures or another distributor.
While this exemption applies to public performances, it likely would not apply to any recordings or broadcasts made of the same public performances. For example, recording the production of a play or a musical recital performed by students in class would require permission from the students and of the copyright owner of the source material. Privacy rights, students’ copyright in their performances, and the rights to remuneration of the copyright owner in the composition or dramatic work being performed must all be considered prior to recording public performances.
Exemption for news and commentary
Section 29.6 of the Copyright Act provides an exemption permitting the reproduction of a single copy of a news program or news commentary program to show to an audience of university students for educational training where the copy is shown on the university premises. Copied news and commentary programs must not be used for entertainment purposes.
A documentary does not qualify for the exemption and requires permission to copy.
Exemption for reproduction of a broadcast
Sections 29.7 of the Copyright Act allows an educational institution or someone acting under its authority to make a single copy of a work at the time it is broadcast, and to keep the copy for up to 30 days to determine whether or not to perform the copy for educational or training purposes.
If the copy is performed before university students on the university premises, or if the copy is retained for more than 30 days, it will be subject to royalties and other terms and conditions. Contact the Copyright Office in advance of showing a copy of a broadcast, or within 15 days of the recording being made, to determine the applicable royalties and conditions.
It is never permissible to show a copy of a broadcast obtained through unlawful means.
Exemption for persons with perceptual disabilities
Section 32 of the Copyright Act permits a person with a perceptual disability, or a person acting at the request of such a person, or for a non-profit organization acting for the benefit of such a person to:
- Make a copy or sound recording of a literary, musical, artistic or dramatic work, other than a cinematographic work (motion picture or film), in a format specially designed for persons with a perceptual disability
- Make a fixed copy of a performer’s performance of a literary, musical, artistic or dramatic work, other than a cinematographic work (motion picture or film), in a format specially designed for persons with a perceptual disability
- Make a copy of a sound recording, or a copy of a performance made under point 2 above, in a format specially designed for persons with a perceptual disability
- Translate, adapt or reproduce in sign language a literary or dramatic work, other than a cinematographic work, in a format specially designed for persons with a perceptual disability
- Provide a person with a perceptual disability with, or with access to, a work or other subject matter the above points apply to, in a format specially designed for persons with a perceptual disability, and do any other act that is necessary for that purpose
- Perform in public a literary or dramatic work, other than a cinematographic work, in sign language, either live or in a format specially designed for persons with a perceptual disability
The exemption does not apply where the work or sound recording is commercially available on the Canadian market in a format specially designed to meet the needs of a person with a perceptual disability and can be acquired using reasonable effort within a reasonable time and at a reasonable price.
This exemption allows non-profit organizations to reproduce literary, musical, artistic or dramatic works (but not cinematographic works) in a format specifically designed for persons with a print disability to people outside of Canada in certain circumstances. If you believe this exemption may apply to your circumstances, contact the Copyright Office for further information.
Exemption for non-commercial user-generated content
Section 29.21 of the Copyright Act allows some copying for personal use of an individual, with limitations. This exemption is sometimes called the “YouTube exception.”
For example, recording a friend dancing to copyrighted music and posting the recording to YouTube for non-commercial purposes is likely allowed. As well, creating a musical or video mash-up for non-commercial purposes is also likely allowed. The limitations on using this exemption include:
- The use/dissemination of the new work must be solely for non-commercial purposes;
- The source (and name of author, performer, maker or broadcaster if provided) must be included if it is reasonable to do in the circumstances;
- The user has reasonable grounds to believe that the original work or copy they reused was not an infringing copy; and
- The use/dissemination of the new work does not have a substantial adverse effect on the original work (for example, no detrimental effect on the market for the original work, or that the new work is a substitute for the original work).
Among other limitations, breaking a digital lock to access the original works is prohibited.
More Copyright Act exemptions
The Copyright Act includes a number of other copyright exemptions that may be relevant.
For example, the exemption related to reproduction for private purposes (Sections 29.22 and 29.23) would allow you to copy songs from a CD you legally own onto your computer, and to record a television program to watch at a later time. Another exemption allows you to create a backup copy of software you legally own (Section 29.24). See the Copyright Act for details of all exemptions and limitations.