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Fair dealing should be given a 'large and liberal interpretation'

Enumerated headings of fair dealing are an exhaustive list but the factors are not

. 枚举的合理使用的标题已完全列明,但要素未列明

Fair dealing should be given a 'large and liberal interpretation' (CCH para 51)


Similar to the Article 22 provisions in Chinese law but less specifically defined

Fair Dealing 合理使用
Courts have adopted a two step test for analyzing fair dealing claims where a defendant must prove that:
the dealing was for one of the enumerated purposes
2、it was fair. (CCH, para 50)

The first stage is easy to overcome and just requires that the use fit into the categories that are enumerated in the act.


For step 2, determination of fairness, courts have adopted a six factor test, somewhat similar to one used in American Jurisprudence

Six Fairness Factors 六个合理要素
Purpose of the Dealing
1. 使用的目的
2.Character of the dealing
2. 使用的特性
3. Amount of the Dealing
3. 使用的数量
4.Alternatives to the dealing
4. 使用的备选
5. Nature of the work
5. 作品的属性
6. Affect of the dealing on the work
6. 使用作品的影响

These are more or less six factors; none of these factors should be taken as determinative but rather weighed in the context of the facts

Purpose and Character 目的和特性
(1) Purpose: the purpose of the dealing will be fair if it is for one of the allowable purposes under the Copyright Act... courts should attempt to make an objective assessment of the user/defendant’s real purpose or motive in using the copyrighted work. (CCH, para 54)
(2) Character: courts must examine how the works were dealt with. If multiple copies of works are being widely distributed, this will tend to be unfair. If, however, a single copy of a work is used for a specific legitimate purpose, then it may be easier to conclude that it was a fair dealing. (CCH, para 56)
Amount and Alternatives 数量和替代
(3) Amount: Both the amount of the dealing and importance of the work allegedly infringed should be considered in assessing fairness. If the amount taken from a work is trivial, the fair dealing analysis need not be undertaken at all because the court will have concluded that there was no copyright infringement. (CCH, para 56)
(4) Alternatives to the dealing: Alternatives to dealing with the infringed work may affect the determination of fairness. If there is a non-copyrighted equivalent of the work that could have been used instead of the copyrighted work, this should be considered by the court.(CCH, para 57)
Nature and Effect on work属性和对作品的影响
(5) Nature: if a work has not been published, the dealing may be more fair in that its reproduction with acknowledgement could lead to a wider public dissemination of the work. If, however, the work in question was confidential, this may tip the scales towards finding that the dealing was unfair. (CCH, para 58)
(6) Effect on work: If the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair. Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider (CCH, para 59)
Case Study: Alberta v. Access Copyright 案例研究:阿尔贝塔诉著作权许可代理
Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37

Facts: Teachers were photocopying material from books for use by students in the classroom.


Issue: Was this use by teachers fair dealing under the purpose of private study


Ratio: Teachers' use was considered fair dealing under private study


Analysis: Fair dealing is a user's right and each of the headings should be given a 'large and liberal interpretation'. Though the teachers were not conducting private study for themselves but facilitating student's private study this was acceptable.


Question: Should exceptions to copyright be liberally construed or strictly applied based on the legislation


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