Fair Dealing by Giulia Forsythe (CC BY-NC-SA 2.0) https://flic.kr/p/dRkXwP
I get this question often.
It’s an important one because as creators, we don’t want to steal from our fellow artists, lest we be likewise stolen from (forgive my ending with a preposition).
Wouldn’t it be nice to include in your next novel a quote from J.D. Salinger or that perfect line from a Shakespearean sonnet? Yay to the latter, nope to the former. Why? Because Shakespeare is dead and his works are in the Public Domain, while J.D. Salinger, though dead, has only been so for five years, and his works are still under copyright.
In Canada we use the term “fair dealing,” while the States uses the term “fair use.” It’s important to distinguish between these two terms. The fair use exception in U.S. copyright law is NOT the equivalent of fair dealing in Canadian law, and wording of the two exceptions is different. Make sure that you consider the Canadian law and are not relying on U.S. information, which has no jurisdiction in Canada. In Canada, fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.
Copyright basics – Insubstantial/Substantial (from Concordia University)
“The Copyright Act (s.3) protects substantial parts of works as well as whole works.
Since “substantial” is not defined in the Act, the quantity and importance of what is being copied must be evaluated. In deciding whether a part of a work is considered substantial, the whole work must be taken into account. A few sentences from a novel would probably be considered insubstantial but a single line from a poem might be essential to the work and be considered substantial.”
From the International James Joyce Foundation: Under Canadian “‘fair-dealing’ provisions, the following uses do not infringe copyright:
- for the purpose of research or private study
- for the purpose of criticism, review, or news reporting, so long as the source and the name of the author are mentioned
- for purposes of instruction to make a manual reproduction of a work onto a display board or to make a copy of a work to be used on an overhead projector
- live, not-for-profit performance of a work by students at an educational institution before an audience consisting primarily of students and instructors.
Factors that may be considered in determining fair dealing in Canada… include the purpose and character of the use, the amount of the use, the alternatives to the use, the nature of the copyrighted work, and the effect of the use on that work. As with U.K. fair dealing, fair dealing in Canada… is generally less flexible and broadly construed than the fair-use doctrine in the U.S.; fair dealing… tends to be categorically limited to the purposes set forth above.”
So, if you really need that quotation, best to use the words of someone long dead or to seek permission from the copyright holder (necessitating payment, very often a substantial even prohibitive sum for a writer or a publishing house).
For more informed detail on Canadian fair dealing, visit Michael Geist’s excellent blog page.
Writing Quote: “Writers write about what obsesses them. You draw those cards. I lost my mother when I was 14. My daughter died at the age of 6. I lost my faith as a Catholic. When I’m writing, the darkness is always there. I go where the pain is. – Anne Rice, American author (b. 1941).
Writing Tip: The Guardian’s “Ten Rules for Writing Fiction.”
Writing Prompt: Write a poem or prose anecdote about yourself in which nothing is true.