Copyright, Fair Dealing, and Images
This resource provides a set of guidelines for students using and creating visual materials. It is not meant to be legal advice.
What is copyright?
Copyright is the legal means through which creators control the use and reproduction of their intellectual and artistic works. The Copyright Act (R.S.C. 1985, c. C-42) governs copyright in Canada and, like other copyright acts and agreements, its aim is to protect the economic and moral rights of creators while providing reasonable access to their created works in support of culture and to benefit society as a whole.
What rights are granted through copyright?
Economic rights: Copyright grants creators the economic right to benefit financially from the exploitation of their works by either selling access to their work (i.e. licensing) or by selling their rights to the work itself.
Copyright owners have the sole right to authorize others to exercise any of his or her rights. Therefore, copyright protects authors’ works from being copied, performed, communicated to the public, adapted or translated, or distributed without the permission of the copyright holder.
Moral rights: Along with copyright, authors also have moral rights that are meant to protect their personality or reputation and the integrity of their work. Depending on a country’s copyright laws, moral rights allow creators to require attribution and restrict certain changes to and uses of their work.
The moral rights of a creator can include the right of attribution (to be acknowledged as the author of a work or to choose to remain anonymous), the right to control associations with the work (for example, a product, cause or institution), and the right to protect the integrity of a work (to prevent modifications which may damage one’s reputation).
What types of images are protected?
Images fall under the blanket term artistic works in the Canadian Copyright Act, which includes paintings, drawings, maps, charts, plans, photographs, engravings, works of artistic craftsmanship, and compilations of artistic works (sculptures and architectural works are also included under artistic works).
- Photographs are further delineated to include photo-lithographs and any work expressed by a process analogous to photography (therefore open to technologies as yet unknown). Please note that photographs can have different rules of ownership and various copyright durations.
- Engravings include etchings, lithographs, woodcuts, prints, and other similar works not considered photographs.
Copyright protection is automatically provided for the types of works listed above; therefore, when using images begin by assuming that all images may be protected by copyright. It is your responsibility to use images ethically with an awareness of possible copyright restrictions.
What is the Fair Dealing Exception?
Fair Dealing is an exception in the Canadian Copyright Act that permits the use of other people’s copyright protected work without permission or payment for the purpose of research, private study, education, satire, parody, criticism, review or news reporting. If your use is for one of these purposes you must make a fair dealing analysis. The six factors that are used to determine fairness are:
- The purpose of the dealing: Is it for commercial, educational or charitable purposes?
- The character of the dealing: Are you making multiple copies; is it going to be widely distributed? Are you making a single copy; will it be of limited distribution?
- The amount of the dealing: Are you copying an entire work or a significant portion? Is the copy of a limited amount of the work, or a minimal portion?
- The nature of the work: Is it for inclusion in a confidential work? Is it going to remain unpublished? Is it included in a work of relevance to the public interest?
- The availability of alternatives to the dealing: Are their other options available for use or is this the only resource available and it is deemed an essential part?
- The effect of the dealing on the work: Will your work compete with the market for the original work? Will it have no effect on the original’s market value?
Fair dealing is deliberately ambiguous and no single factor is decisive by itself. The reasonable use of copyright protected work does not necessarily have to satisfy each factor in order to be considered fair dealing.
Please note: If you are using a work for the purposes of review, news reporting, or criticism, under the fair dealing provision you must cite your source and the author’s name (if given in the source).1
1. This section on fair dealing was adapted from Simon Fraser University’s “What is fair dealing and how does it relate to copyright?” From Copyright at SFU, accessed on April 16, 2016, http://www.lib.sfu.ca/help/academic-integrity/copyright/fair-dealing. This content on the Simon Fraser University website is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.
Additional Resources for Fair Dealing:
Western University’s Fair Dealing Analysis
A very hepful tool created by Western University that offers an analysis that begins with two “tests.” The first considers the purpose for copying as articulated in the Copyright Act. The second test focuses on determining fairness as decided by the Supreme Court in its 2004 CCH v Law Society ruling.
General Resources for Canadian, U.S and International Copyright:
The Canadian Association of Professional Image Creators (CAPIC) - Copyright Law
This webpage outlines how the 2012 amendments affect the rights of photographers.
Canadian Intellectual Property Office: A Guide to Copyright
This guide explores what copyright is, the process for registering copyrights in Canada, and the benefits of registration.