Title: Applying Fair Dealing

*Updated: October 2024
Learning Objectives:

- Recognize that satisfying a fair dealing purpose fulfills only the first step of the two-step fair dealing test
- Understand the six factors and their relationship to one another in the second part of the two-step fair dealing test
- Apply both steps of the two-step fair dealing test to conduct a fair dealing analysis

What is a 'dealing'?
What is a 'dealing'? In general terms the 'dealing' in fair dealing aims to describe how a work is used in a particular circumstance. A 'dealing' is a specific type of use of a work that impacts the interests of the rights holder. A 'fair dealing' can be said to happen when any adverse impacts on the interests of the rights holder are outweighed by the benefits to the broader public interest.

What does 'CCH' mean?
'CCH' is the shorthand reference to the 2004 Supreme Court decision in the case of the publisher CCH Canadian Ltd. v. Law Society of Upper Canada that established the two-step, six-factor fair dealing test. If you want to know more, check out our CCH v. LSUC module.

A fair dealing analysis consists of:

Q: A fair dealing analysis consists of:
- A one-step test that determines if the purpose for using the work matches at least one of the purposes listed in the Copyright Act
- A two-step test that involves assessing if the purpose for using the work matches at least one the purposes listed in the Copyright Act, and then evaluating fairness based on considering the six factors noted by the Supreme Court of Canada (correct)
- A six-step test that determines fairness based on considering the six factors noted by the Supreme Court of Canada
- A 48-step test analyzing fairness for every purpose and every factor
- Roll a pair of dice – snake eyes, box cars or a 7 and the dealing is fair, if not the dealing is unfair

In conducting the first step of the two-step fair dealing test, the stated purposes should be interpreted:

Q: In conducting the first step of the two-step fair dealing test, the stated purposes should be interpreted:
- Narrowly/restrictively
- Broadly/liberally (correct)
- Only by a Major League Baseball heavy hitter

Identify the six factors in the fair dealing assessment:

Q: Identify the six factors in the fair dealing assessment:
- Nature (correct)
- Novelty
- Amount (correct)
- Cost
- Effect (correct)
- Character (correct)
- Purpose (correct)
- Coolness
- Popularity
- Alternatives (correct)
- Fairness

When considering fairness in the second step of the two-step test, each factor should be considered in isolation with no consideration of how the factors relate.

Q: When considering fairness in the second step of the two-step test, each factor should be considered in isolation with no consideration of how the factors relate.
A: false

You can only proceed to the second step (considering the six factors) if you pass the first step (meeting at least one of the allowable purposes).

Q: You can only proceed to the second step (considering the six factors) if you pass the first step (meeting at least one of the allowable purposes).
A: true

To conclude a fair dealing assessment you must have a minimum of how many factors weight towards fairness?

Q: To conclude a fair dealing assessment you must have a minimum of how many factors weight towards fairness?
- Three factors (50%)
- Four factors (66%)
- Six factors (100%)
- There is no formula, checklist, or scorecard that involves considering all six factors and the relationship among them (correct)

Choose the correct statement.

Credits: Applying Fair Dealing; by University of Alberta; 2020; licence CC BY 4.0