Tuesday 9 November 2010

Fair Use v Fair Dealing

There’s been a lot of speculation following Cameron’s announcement of a review of IP Law about the implications of moving towards a ‘fair use’ provision in copyright law. Rights holders are against it, educational institutions should be for it, but what does it really mean?

Spot the Difference

Although it’s not easy to do, let’s compare and contrast US Copyright Law with UK Copyright Law:

Both are subject to the Berne Convention

Copyright duration is 70 years from the death of the author/creator in both laws

Copyright is an automatic right in both laws

Both recognise moral rights (to an extent)

Both have exceptions and/or defences to copyright infringement

The US has a system of copyright registration, the UK used to but it was abolished a long time ago

The major difference which Cameron arguably hasn’t taken into account is that the US has a system of Copyright Registration, whereas the UK does not. This system strengthens the hand of the rightsholder and allows them greater protection for their work, enabling them to claim significantly higher damages when infringement occurs. This, in my opinion, could be where an attempt to move towards US law may fail – rightsholders will simply see a move to expand fair dealing exceptions as an excuse for commercial entities to use their works for free.

Fair’s Fair...

So, the burning question.. what’s the difference between fair use and fair dealing?

One major difference is that the US Law lists the factors to be taken into consideration when determining whether the use made of a work is fair. These factors are as follows:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

2. the nature of the copyrighted work;

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work.

These factors relate to a wide range of purposes for which use of copyright work is not considered an infringement. These purposes include criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.

In the UK, there is no such definition of ‘fair’ in the Copyright Act. Rather, it is subject to the whims of case law, and since the eleven word infringement case in Denmark, societies and publishers are afraid to define the scope of what is considered ‘fair dealing’. Instead, UK fair dealing sets out provisions for each particular purpose rather than grouping them all together. Thus, criticism and review becomes one, non-commercial research another, and so on. Some fair dealing provisions do not extend to unpublished works (criticism and review, for example), whereas in the US “the fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." (US Copyright Act)

My thoughts...

This may be an ideal opportunity for educational institutions to provide a wish list of extensions to the fair dealing provisions set out in the Copyright Act to the government's review. As such, it should be seized by those working in education. Ideally, we would like to see 'fair' defined in UK law as it is in US law, and an expansion of the educational exceptions so that they are less technology-specific and allow for the use of material for the purposes of teaching/delivery of courses within educational institutions.

However, my cynical side is inclined to think that 6 months is not long enough to undertake a review of IP Law, when the Gowers Review took at least 4 years. And the provisions made there haven't even been implemented yet. My personal feeling is that if Cameron wants to go down the fair use path and widen the exceptions, chances are that he may have to make the process of dealing with copyright infringement easier for rightsholders. Without a system of copyright registration or even a central Copyright Office, the ideals of the fair use provisions may just be a slice of Google pie in the sky...


  1. Pie in the sky :)

    I wonder how much music collection societies (PRS / MCPS) effectively allow for fair use anyways, and the internet forces their hand into being more aggressive.

    Also - exceptions - such as - http://blogs.nottingham.ac.uk/learningtechnology/2010/10/08/copyrighternicus-and-gallilegalo/

    "qualified privilege"?

  2. Hmm not quite.. "qualified privilege" is a defence for defamation, not copyright. Although there is a grey area of defence called 'public interest' - it's not officially in the law but some case law takes it into account.

  3. Excellent post on interesting distinctions between fair use and fair dealing. Are you familiar with J.D. Salinger's case in the U.S. against Ian Hamilton? Would the fact that many of the letters at issue in that case were available for inspection in university libraries have made them eligible for "fair dealing" even though they were unpublished? The Salinger/Hamilton case led to Congress inserting in the fair use statute the section you quote on unpublished status not, by itself, barring the application of fair use.

    Mark at RightsofWriters.com

  4. A very clear analysis of the essential differences between 'fair use' and 'fair dealing' - thank you.

    Most UK teachers that I have spoken to about copyright tend to assume that 'fair use' is the default position in the UK as well, despite a passing knowledge of CLA licences. Most also tend not to think about copyright in their lesson planning or teaching either (perhaps copyright law, like traffic accidents, is something that 'happens to other people'). One of the many reasons for encouraging greater use of Creative Commons, I find.

  5. Why the hell would I want fair use-like provisions in UK law? You can't make 100% savings on the cost of textbooks in the U.S. like you can in the UK at the moment.