Fair dealing is a provision in Canada’s Copyright Act that allows people to use copyrighted works without permission or payment if the copying is done for the purposes of research, private study, criticism, review, news reporting, education, parody, or satire. The use of the work for these purposes must also be fair. The Copyright Act deliberately avoids a clear definition of fair dealing. This lack of clarity provides flexibility and allows fair dealing to be adapted to many situations and new ways of accessing and using copyrighted works. Since 2004, the Supreme Court of Canada has issued several rulings clarifying the scope of fair dealing, including CCH Canadian, Access Copyright, and SOCAN v. Bell Canada. Together, these decisions emphasize that fair dealing is a “user right” that must receive a broad and liberal interpretation.
Universities Canada, a national member organization representing universities, also provides guidance on fair dealing. The organization adopted a practical, easy-to-administer approach to fair dealing by setting out a quantitative limit: A “short excerpt” is defined as “up to 10%” of a work, while also listing examples such as one book chapter, one journal article, an entire newspaper article, or a single poem from a larger work.
MacEwan’s previous Guidelines were based on the Universities Canada approach. In a departure from the status quo, MacEwan recently approved a significantly revised and updated Fair Dealing Guidelines that replaced the 10% rule. The rule, while widely adopted, does not appear in the Copyright Act and was not established by the Supreme Court of Canada as a definitive legal threshold for fairness. MacEwan’s revised approach purposefully re-centers the actual legal analysis. This framing better reflects the flexible nature of fair dealing as a user right and helps avoid both over-permissive and over-restrictive interpretations. In some cases, less than 10% may be unfair if it substitutes for the work or exceeds what is needed; in other cases, more than 10% — or even an entire work such as an image or a chart — may be fair where that amount is reasonably necessary for the intended purpose. The benefit of removing the 10% rule is that the approach is more legally faithful and intellectually honest. However, as with all institutional fair dealing guidelines, the document does not determine legality in itself; rather, it provides a framework for applying fair dealing principles in educational contexts. The revised approach also recognizes that fair dealing operates alongside existing library licenses, open educational resources, and other lawful access mechanisms available within the university environment.
The practical value of MacEwan’s approach is that it supports contextual copyright decision-making rather than reliance on mechanical compliance. By replacing the 10% rule, the updated guidelines encourage instructors, staff, and students to ask the more relevant questions:
- What is the purpose for which I am copying or uploading the work?
- Is access limited to enrolled students?
- Is only the necessary amount being used?
- Are there realistic alternatives to the work being copied or shared?
- Is the work published and intended for dissemination?
- Would my use of the work substitute for a purchase or license?
These kinds of questions are reflected in the six-factor analysis as set out by the Supreme Court of Canada, including the purpose, character, amount, alternatives, nature of the work, and market effect on the work. Taken together, they provide a contextual, user-centered, and case-based approach to fair dealing. MacEwan’s Guidelines still provide practical examples — such as a chapter or section of a book, an article from a journal — but these are presented as general guidance rather than absolute limits. The overall approach is more mature and legally literate. It recognizes that university teaching often requires illustration, commentary, analysis, and contextual engagement with materials, and that fairness depends on how and why the work is used. Overall, the revised guidelines are more flexible, more pedagogically responsive, and more faithful to fair dealing as a contextual user right within Canada’s copyright system.
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