Alternatives to the Dealing. 57 Alternatives to dealing with the infringed work may affect the determination of fairness. If there is a non-copyrighted equivalent of the work that could have been used instead of the copyrighted work, this should be considered by the court. I agree with the Court of Appeal that it will also be useful for courts to attempt to determine whether the dealing was rea- sonably necessary to achieve the ultimate purpose. For example, if a criticism would be equally effec- tive if it did not actually reproduce the copyrighted work it was criticizing, this may weigh against a finding of fairness.
Alternatives to the Dealing. It is not apparent that there are alternatives to the custom photocopy service employed by the Great Library. As the Court of Appeal points out, the patrons of the custom photocopying service cannot reasonably be expected to always conduct their research on-site at the Great Library. Twenty per- cent of the requesters live outside the Toronto area; it would be burdensome to expect them to travel to the city each time they wanted to track down a spe- cific legal source. Moreover, because of the heavy demand for the legal collection at the Great Library, researchers are not allowed to borrow materials from the library. If researchers could not request copies of the work or make copies of the works themselves, they would be required to do all of their research and note-taking in the Great Library, something which does not seem reasonable given the volume of research that can often be required on complex legal matters. The availability of a licence is not relevant to deciding whether a dealing has been fair. As dis- cussed, fair dealing is an integral part of the scheme of copyright law in Canada. Any act falling within the fair dealing exception will not infringe copy- right. If a copyright owner were allowed to license people to use its work and then point to a person’s
