When Is Something Considered “Fair Use” Under Canadian Copyright Law?

Canadians regularly use the phrase “fair use” when discussing copyrighted material. You may hear it when someone quotes an article, includes a film clip in a review, reposts an image, creates a parody, produces a reaction video, or uses existing content for educational purposes.

However, “fair use” is primarily an American legal term. Canadian copyright law generally uses the doctrine of fair dealing.

The distinction matters. A use that might qualify as fair use under United States law is not automatically permitted in Canada. Under the Canadian Copyright Act, the use must first be connected to a recognized fair-dealing purpose and must also be fair in the circumstances.

Fair dealing is a statutory exception to copyright infringement.

It permits certain uses of copyright-protected material without permission from the copyright owner. However, the exception is not unlimited.

The Canadian analysis generally involves two questions:

1. Was the copyrighted material used for a legally recognized fair-dealing purpose?
2. Was the dealing actually fair?

Both parts must be satisfied.

The Supreme Court of Canada has emphasized that fair dealing is an important part of the balance between copyright owners and users. It should not be interpreted so restrictively that the exception becomes meaningless. At the same time, it does not provide a general right to use other people’s work whenever doing so seems reasonable. (SCC Cases)

What Purposes Qualify for Fair Dealing?

Sections 29, 29.1 and 29.2 of the Copyright Act recognize fair dealing for the following purposes:

• research;
• private study;
• education;
• parody;
• satire;
• criticism or review; and
• news reporting. (Laws and Regulations of Canada)

A use must genuinely relate to one of these purposes before the fairness analysis begins.

For example, using a short film clip as part of a detailed review may potentially fall within criticism or review. Reposting the same clip merely to attract views or promote an unrelated product may be more difficult to characterize as fair dealing.

Research

Research is interpreted broadly in Canadian copyright law.

It is not limited to academic or scientific activity. Depending on the circumstances, research may include professional, legal, technical, commercial, journalistic, or market-related investigation.

However, establishing a research purpose does not end the analysis. The manner in which the material was copied, distributed, retained, or commercialized must still be fair.

Private Study

Private study generally involves a person examining material for their own learning or understanding.

Making a copy of an article for personal study may be treated differently from posting that article publicly or distributing it throughout an organization.

The more broadly the material is disseminated, the less the activity may resemble genuinely private study.

Education

Education is expressly recognized as a fair-dealing purpose.

This does not mean that every use by a teacher, school, training provider, university, or educational business is automatically lawful. The amount copied, the number of copies distributed, the availability of alternatives, and the effect on the market for the original work may all be relevant.

An educational label cannot be used to justify unlimited copying.

Parody and Satire

Canadian fair dealing includes both parody and satire.

A parody commonly imitates or refers to an existing work for humorous or critical effect. Satire may use a work to comment on a broader social, political, or cultural subject.

Although the purpose may qualify, the use must still be fair. Additional legal issues may also arise, including:

• trademark infringement;
• passing off;
• defamation;
• moral rights;
• personality rights; and
• misleading advertising.

Calling something a parody does not automatically prevent a copyright claim.

Criticism or Review

Copyrighted material may be used for criticism or review where the use genuinely analyzes, evaluates, comments on, or discusses the work or a related subject.

Examples may include:

• film reviews;
• book reviews;
• reaction videos;
• media criticism;
• academic commentary;
• product comparisons; and
• cultural analysis.

For criticism or review, the Copyright Act requires identification of the source and, where provided in the source, the relevant author, performer, sound-recording maker, or broadcaster. (Laws and Regulations of Canada)

Attribution is therefore important, but it is not sufficient on its own. Giving credit does not legalize a use that is otherwise unfair.

News Reporting

Fair dealing may also apply to news reporting.

This can potentially extend beyond traditional newspapers and television news to online publications, podcasts, newsletters, and other genuine reporting formats.

As with criticism or review, the source and relevant creator must be identified where that information appears in the source. (Laws and Regulations of Canada)

Merely reposting another outlet’s article, footage, or photographs without adding meaningful reporting will not necessarily qualify.

How Is Fairness Determined?

In CCH Canadian Ltd. v. Law Society of Upper Canada, the Supreme Court of Canada identified six non-exhaustive factors for evaluating whether a dealing is fair:

• the purpose of the dealing;
• the character of the dealing;
• the amount of the dealing;
• alternatives to the dealing;
• the nature of the work; and
• the effect of the dealing on the work. (SCC Cases)

These factors are considered together. No single factor determines the result in every case.

The Purpose of the Dealing

The court may examine the user’s real objective.

Questions may include:

• Was the purpose genuinely criticism, research, education, or news reporting?
• Was the material primarily used to entertain or attract attention?
• Was the use commercial?
• Was the work incorporated into advertising?
• Was meaningful analysis added?

Commercial use is not automatically excluded from fair dealing, but commercial motivation may affect the overall assessment.

The Character of the Dealing

The character of the dealing concerns how the material was used and distributed.

Relevant questions may include:

• Was a single copy made or thousands?
• Was the material posted publicly?
• Was it sent to a limited group?
• Was the copy retained permanently?
• Was the entire work made available?
• Was access restricted?
• Was the material deleted after its permitted use?

A limited and controlled use may be treated differently from widespread, permanent republication.

The Amount of the Dealing

There is no universal percentage of a work that may always be copied.

The amount used is considered both quantitatively and qualitatively.

Using five percent of a work does not guarantee fairness. A short excerpt may still represent the work’s most valuable, memorable, or commercially important portion.

Conversely, there may be circumstances where using an entire work is reasonably necessary for the permitted purpose.

The central question is whether the amount used was reasonably connected to the fair-dealing purpose.

Alternatives to the Dealing

A court may consider whether the user could reasonably have achieved the same purpose without copying the protected material.

Questions may include:

• Could a smaller excerpt have been used?
• Could the work have been described rather than reproduced?
• Was a non-copyrighted substitute available?
• Was reproducing the original necessary to make the criticism understandable?
• Could permission reasonably have been obtained?

The existence of an available licence may be relevant, but it does not automatically mean that fair dealing is unavailable.

The Nature of the Work

The nature of the original work may affect the analysis.

For example, using already published material may be treated differently from disclosing unpublished, private, confidential, or restricted material.

In some circumstances, reproducing a work may support wider public access to information. In others, publication may interfere with the creator’s right to decide whether and how the work is released.

The Effect on the Work

The court may consider whether the use competes with or substitutes for the original.

A use may be less likely to be fair where it:

• reduces demand for the original;
• allows users to avoid purchasing or viewing the original;
• interferes with an established licensing market;
• republishes the commercially valuable part of the work; or
• harms the copyright owner’s ability to exploit the work.

A review containing short illustrative excerpts is very different from uploading the entire work so that audiences no longer need the original.

Is There a Safe Percentage?

No.

Canadian copyright law does not establish a universal safe percentage, word count, clip length, or time limit.

Statements such as the following are unreliable:

• “You can always copy ten percent.”
• “Thirty seconds of a song is fair use.”
• “One paragraph is always allowed.”
• “Changing twenty percent makes it original.”
• “If it is on Google, it is free to use.”

The analysis depends on the purpose, context, amount, importance, distribution, alternatives, and market effect.

Does Giving Credit Make It Fair Use?

No.

Crediting the creator may satisfy an attribution requirement for criticism, review, or news reporting, but it does not replace permission or establish fairness.

Similarly, statements such as these have little legal effect:

• “No copyright infringement intended.”
• “All rights belong to the owner.”
• “Used for educational purposes.”
• “For entertainment purposes only.”
• “Credit to the original creator.”

The actual legal analysis matters more than the disclaimer.

Can a Commercial Use Be Fair Dealing?

Potentially.

Canadian fair dealing is not restricted exclusively to non-commercial activity. However, commercial exploitation may weigh against fairness in some circumstances.

Relevant issues include whether:

• the copyrighted work is being used to sell a product;
• the user earns advertising or subscription revenue;
• the use substitutes for the original;
• the work is central to the commercial product;
• the user added genuine analysis or commentary; and
• the use harms the copyright owner’s market.

Businesses should be particularly cautious when using copyrighted works in advertising, sponsored content, merchandise, paid courses, subscription services, or commercial software.

Are Reaction Videos Fair Dealing?

Some reaction videos may potentially qualify as criticism or review.

The analysis may depend on:

• how much of the original video is shown;
• whether the creator provides meaningful commentary;
• whether the video is regularly paused for analysis;
• whether viewers can use the reaction video as a substitute for the original;
• whether the source is properly identified; and
• whether the most valuable portions of the original are reproduced.

Simply playing an entire video while occasionally reacting is much riskier than using selected clips to support sustained commentary.

Are Memes Fair Dealing?

Some memes may fall within parody or satire.

Canada also has a separate exception for certain non-commercial user-generated content. That exception is distinct from fair dealing and has its own conditions. (Laws and Regulations of Canada)

The analysis may change significantly where a meme is used:

• in an advertisement;
• on branded merchandise;
• as sponsored content;
• to promote a business;
• as part of a paid campaign; or
• in a way that competes with the original.

Can Images Found Online Be Used Freely?

No.

The fact that an image appears in a search engine, social-media account, website, or online article does not mean it is in the public domain.

Photographs, illustrations, graphics, videos, articles, and social-media posts may all be protected by copyright.

Before using an image, a business should consider whether:

• it owns the image;
• it obtained permission;
• a licence applies;
• the image is genuinely in the public domain;
• a Creative Commons licence applies; or
• the particular use qualifies as fair dealing or another statutory exception.

Fair Dealing and Social Media Platforms

Platform rules and copyright law are not the same.

A use might arguably qualify as fair dealing but still be removed by a social-media platform under its terms, automated detection system, or complaint process.

Conversely, the fact that a platform has not removed content does not establish that the use is legal.

YouTube, Instagram, TikTok, Facebook, and other platforms generally make their own enforcement decisions, which may occur without a full Canadian fair-dealing analysis.

When Should Permission Be Obtained?

Permission or a licence may be preferable where:

• the use does not clearly fit a permitted purpose;
• a substantial or important part will be used;
• the entire work will be reproduced;
• the content will be used commercially;
• the work is central to a product or campaign;
• the material will be distributed widely;
• legal uncertainty could jeopardize an investment or launch; or
• the copyright owner is likely to object.

A licence can address the permitted media, territory, duration, attribution, modification rights, sublicensing, exclusivity, and fees.

What Should You Do Before Relying on Fair Dealing?

Before publishing copyrighted material, consider documenting:

• the fair-dealing purpose;
• why the amount used is necessary;
• the source and creator;
• the intended audience;
• how the content will be distributed;
• whether the use is commercial;
• available alternatives;
• the expected effect on the original market; and
• whether permission could be obtained.

This documentation can assist the organization in making a reasoned decision rather than relying on a vague belief that the use “feels fair.”

What Happens If the Copyright Owner Objects?

A copyright owner may send:

• a cease-and-desist letter;
• a licensing demand;
• a platform takedown request;
• a notice-and-notice allegation;
• a demand for compensation; or
• a threatened court claim.

A recipient should avoid immediately admitting infringement.

The claim should be assessed to determine:

• whether the claimant owns the copyright;
• whether copyright subsists in the material;
• whether a substantial part was reproduced;
• whether fair dealing applies;
• whether another exception applies;
• whether a valid licence exists; and
• what remedies may realistically be available.

Final Thoughts

Something is not considered “fair use” under Canadian law merely because only a small portion was copied, credit was given, the use was educational, or the user did not intend to infringe copyright.

The proper Canadian question is whether the use qualifies as fair dealing.

That requires both:

• a recognized statutory purpose; and
• a fair use of the material after considering all the relevant circumstances.

Because the analysis is highly fact-specific, businesses and creators should be cautious about relying on simplified online rules. Where copyrighted material is important to a publication, product, campaign, video, or commercial venture, obtaining legal advice before release can help reduce the risk of a takedown, demand letter, or copyright infringement claim. If your project involves broader business compliance issues, you may also want to review 10 Clauses To Include In A Commercial Contract To Protect You and What Documents Should Be In a Corporate Minute Book?