Landing : Athabascau University

Fair dealing trumps licences

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By Rory McGreal September 4, 2013 - 4:57pm

The Supreme Court could not have made fair dealing more clear:
The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right.  In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively.[my emphasis]

Further from the Supreme Court {my emphasis]:
The availability of a licence is not relevant to deciding whether a dealing has been fair. As discussed, fair dealing is an integral part of the scheme of copyright law in Canada. Any act falling within the fair dealing exception will not infringe copyright.

Here's the recent opinion of McMaster University (referring to the AC licence, but applicable to any licence):
Q6. Will the licence agreement limit the ability of those covered by the licence agreement to
communicate with colleagues from other institutions?
A6. When discussing what any person can or cannot do with a copyright-protected work,
statutory exceptions, including fair dealing, will always trump the terms of a licence agreement.
[my empasis ] If a certain use of a copyright work is allowed under the Copyright Act, then such act will be
allowed despite any language in the licence agreement to the contrary.
In other words, the licence agreement will not limit what a student, staff or faculty member can
do pursuant to the fair dealing exceptions under the Copyright Act. For example, if a faculty
member requires a copy of a periodical article for his or her research, the faculty member would
be able to copy the article and transmit it to a colleague with whom the faculty member is
collaborating in the research.

Faculty and students should feel at ease exercising their fair dealing rights. The Supreme Court of Canada has reaffirmed our rights and further stated that fair dealin "MUST" be interpreted in a "large and liberal"manner.



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