Title: Applying Fair Dealing

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 v. Law Society of Upper Canada that established the two step, six factor fair dealing text.  If you want to know more, check out our CCH v. LSUC module.

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

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

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

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

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

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