Canadian Encyclopedic Digest
Copyright
XIV -- Lawful Use of Copyright Works
2 -- Fair Dealing
Copyright © CARSWELL,
a Division of Thomson Canada Ltd. or its Licensors. All rights reserved.
§253
Fair dealing for the purpose of research or private study does not infringe copyright.[FN1] In order to take advantage of the "private study" exception the individual involved must have made the copies or engaged in the otherwise infringing activity personally.[FN2] Educational institutions or their staff do not come within the exception[FN3] but a library, archive or museum or a person acting under its authority may take advantage of the exception.[FN4]
254
Fair dealing for the purpose of criticism[FN1] or review does not infringe copyright if the following are mentioned: the source; and if given in the source, the name of the author, in the case of a work, performer, in the case of a performer's performance, maker, in the case of a sound recording, or broadcaster, in the case of a communication signal.[FN2]
255
Fair dealing for the purpose of news reporting does not infringe copyright if the following are mentioned: the source; and if given in the source, the name of the author, in the case of a work, performer, in the case of a performer's performance, maker, in the case of a sound recording, or broadcaster, in the case of a communication signal.[
256
In order to come within these exceptions the use by the defendant must be fair. What will constitute fair dealing depends on the facts of each case. [FN1] The motive of the defendant,[FN2] the amount of the work taken, [FN3] and whether the two works are likely to be competing[FN4] are important factors. The custom in the particular trade or industry involved may be relevant.[FN5] The fact that a work has not been published does not by itself preclude the application of the defence. However, this will be another factor to be considered.[FN6] The absence of a notice forbidding copying does not affect the plaintiff's rights.[FN7]
