Fair Dealing


LEGAL DOCTRINE OF “FAIR DEALING”
IN VARIOUS COUNTRIES

By: Pan Mohamad Faiz *)

The expression “limitations and exceptions to copyright” refers to situations in which the exclusive rights granted to authors, or their assignees under copyright law do not apply. Limitations and exceptions are also the subject of significant regulation by international treaties. These treaties have harmonized the exclusive rights which must be provided by copyright laws, and the Berne three-step test operates to constrain the kinds of copyright exceptions and limitations which individual nations can enact.

Art. 9(2) of the Berne Convention authorises national legislation to permit the reproduction of protected works ‘in certain special cases’ provided two condition are fulfilled: (a) the ‘reproduction does not conflict with a normal exploitation of the work; and (b) such reproduction ‘does not unreasonably the legitimate interest of the author’. Both conditions have to be fulfilled.

Art. IV bis, paragraph 2 of the UCC permits the member states to make exceptions to three basic rights of the creator of a work (the reproduction right, the public performance right and the broadcasting right) provided that: (a) they ‘do not conflict with the spirit and provisions of the convention, and (b) provided they ‘accord a reasonable degree of effective protection to each of the rights’.

Two important examples of limitations and exceptions to copyright are the “fair dealing” doctrine found in many other common law countries and the “fair use” doctrine found in the United States. In practice, common law courts might rule that actions with a commercial character, which might be naively assumed to fall into one of these categories, were in fact infringements of copyright as fair dealing is not as flexible a concept as the American concept of fair use on copyright.

The legal concept of “copyright” was first ratified by the United Kingdom’s Statute of Anne of 1709. As room was not made for the authorized reproduction of copyrighted content within this newly formulated statutory right, the courts gradually created a doctrine of “fair abridgement”, which later became “fair dealing”, that recognized the utility of such actions.

Fair dealing is a doctrine of limitations and exceptions to copyright which is found in many of the common law jurisdictions of the Commonwealth of Nations. Fair dealing is an enumerated set of possible defenses against an action for infringement of an exclusive right of copyright. Unlike the related United States doctrine of fair use, fair dealing cannot apply to any act which does not fall within one of these categories.

In addition to Fair Dealing there is a general statutory exemption for insubstantial use, where the amount copied and its significance is so small as to be of negligible consequence to the rights holder. Again there is no precise definition, but note that a very small part of a work may be of great significance to the whole. Unlike Fair Dealing this exemption extends to a wider range of purposes.

Doctrine of fair use is a longstanding equitable doctrine that aims at guarding both over and under production of information relative to the socially optimum level of protection. The socially optimum level of protection could be defined as that which provides the right owner with just enough incentive to invest in the particular activity while leaving the public with sufficient information from which further progress may result.

Though the copyright holder enjoys several exclusive rights, they are not absolute and subject to certain limitations and exceptions to safeguard the larger public interest particularly of the users. In other words, use of copyrighted material is allowed without the permission of its author under certain socially desirable circumstances. A right may be violated to facilitate education, research, and dissemination of knowledge and information so as to promote economic and cultural growth of the society.

A. UNITED KINGDOM

Under the Copyright, Designs and Patents Act 1988 (CDPA), fair dealing is defined as “private study and criticism and review and news reporting” (s. 29, 30). Although not actually defined as a fair dealing, copyright in works is not infringed by incidental inclusion in an artistic work, sound recording, film, and broadcast or cable program. New regulations came into force at the end of October 2003 which reduced the research fair dealing exception to non-commercial research only.

The CDPA permits individuals to make a single copy of a “reasonable proportion” of literary, dramatic, musical and artistic works for “research and private study” and “criticism, review and news reporting” ( s. 29, 30) under the terms of “fair dealing”. The extent of “reasonable proportion” is not defined in the act.

In his book, “Intellectual Property, Copyright, Trade Marks and Allied Rights”, Cornish explained that there were three most important of the exceptions which turn upon a qualitative assessment. They exempt copying for certain purposes if it amounts to no more than “fair dealing”. In these cases the courts are left to judge fairness in the light of circumstances. But other exceptions more factual; for instance, unduplicated copying in the course of instruction is exempt irrespective of the amount copied. The three most important of the exceptions are:
The first fair dealing exception is that covering purposes of research or private study, which now applies to the copyright in literary, dramatic, musical and artistic works, and published editions.

The second fair dealing exception permits all works other than photographs to be used for reporting current events. Photographs have been differently treated in order to preserve the full value of holding a unique visual record of some person or event.
But it is the third fair dealing exception that is most general of all allowing works to be used for purposes of criticism or review (of themselves or another work), one precondition of fairness being that the source should be sufficiently acknowledged.

Some higher education institutions in the UK also make interpret “reasonable proportion” as:

  • One article in a single issue of a periodical or set of conference proceedings.
  • An extract from a book amounting to 5% of the whole or a complete chapter.
  • A whole poem or short story from a collection, provided the item is not more than 10 pages.
  • In general, copying of sheet music is not allowed.
  • Making more than one copy is also not allowed.

B. AUSTRALIA

Australia has a deeming provision which guarantees that fair dealing applies if you photocopy either (not more than one chapter), or (less than 10%) of a book or journal (this was a result of a successful lawsuit brought against a university library for “authorisation” of patrons’ copyright infringement).

Regarding fair dealing under Crown copyright the Australian Copyright Act 1968, ss. 176-178, section 182A (inserted by Act 154 of 1980, s.23) provides that the copyright, including any prerogative right or privilege of the Crown in the nature of copyright, in Acts, Ordinances, regulations etc., and judgments of Federal or State courts and certain other tribunals, is not infringed by the making, by reprographic reproduction, of one copy of the whole or part of that work for a particular purpose (this does not apply where charge for copy exceeds cost).

In Australia, the grounds for fair dealing are:

  • Research and study
  • Review and criticism
  • “Reporting the news”
  • Legal advice (although the Crown is deemed to own copyright in federal statutes, and each State in state statutes).

C. CANADA

The Canadian concept of fair dealing is similar to that in the UK and Australia. The fair dealing clauses of the Canadian Copyright Act allow users to make single copies of portions of works for “research and private study.” Similar to the fair use doctrine of United States copyright law, Canada’s fair dealing is not seen as an infringement at all. It then establishes six principal criteria for evaluating fair use.

The Purpose of the Dealing Is it for research, private study, criticism, review or news reporting? It expresses that “these allowable purposes should not be given a restrictive interpretation or this could result in the undue restriction of users’ rights.”

The Character of the Dealing How were the works dealt with? Was there a single copy or were multiple copies made? Were these copies distributed widely or to a limited group of people? Was the copy destroyed after its purpose was accomplished? What are the normal practices of the industry?

The Amount of the Dealing How much of the work was used? What was the importance of the infringed work? Quoting trivial amounts may alone sufficiently establish fair dealing. In some cases even quoting the entire work may be fair dealing. Alternatives to the Dealing Was a “non-copyrighted equivalent of the work” available to the user? Could the work have been properly criticized without being copied? The Nature of the Work Copying from a work that has never been published could be more fair than from a published work “in that its reproduction with acknowledgement could lead to a wider public dissemination of the work – one of the goals of copyright law. If, however, the work in question was confidential, this may tip the scales towards finding that the dealing was unfair.”

Effect of the Dealing on the Work Is it likely to affect the market of the original work? “Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair.” A statement that a dealing infringes may not be sufficient, but evidence will often be required.

D. SINGAPORE

Under the provisions for “fair dealing” in the Copyright Act, Chapter 63 of Singapore Statutes, a certain amount of copying for legitimate purposes, such as for the purpose of research or education, is permissible as long as it is a “fair dealing”. In deciding whether the use is a fair dealing, the following factors will be considered:

  • Purpose and character of the dealing, including whether such dealing is of a commercial nature or is for non-profit educational purposes;
  • Nature of the work or adaptation;
  • Amount copied, relative to the whole work;
  • Effect of the dealing upon the potential market for the work, and effect upon its value;
  • The possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price.

In other cases, a fair dealing for the purpose of criticism or review; for the purpose reporting of news; for the purpose of judicial proceedings or professional advice would not constitute an infringement. In the case of criticism or review and the reporting of news, a sufficient acknowledgment of the work is required. The reporting of the news could be by any means of communication to the public.

E. UNITED STATES

Copyright does not prohibit all copying or replication. In the United States, the fair use doctrine, codified by the Copyright Act of 1976 as 17 U.S.C. Section 107, permits some copying and distribution without permission of the copyright holder or payment to same.

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

  • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • the effect of the use upon the potential market for or value of the copyrighted work.

F. INDIA

India differs from the United States which employs a general fair use doctrine. It also differs from the European civil systems which provide a general doctrine of private use, because such a defence was thought as being too wide and imprecise. In an action for infringement a defence of fair dealing would normally lead to refusal of an injunction. However the flexibility that a general defence approach of use could provide would assist in the struggle to keep copyright law up to date in the light of new technologies and new use of copyright works.

Section 52 (1) of the Copyright Act, 1957 specifies certain uses of protected works which do not constitute infringement. Some exceptions are subject to the condition that the work used is identified along with its author, if known. Some applies to translations and other adaptations of literary, dramatic, musical or artistic works so used. There are some uses listed in section on Assignment and Licensing which do not cause liability if conforming to conditions set by Copyright Board. The exceptions may be classified into those which are referred to as ‘fair use’ or fair dealing with the work and others which is a kind of list or inventory of about 30 things/actions/occasions. The fair use/fair dealing has been subject matter of judicial interpretation and some times pose problem. They are discussed first. Later the other exceptions would be detailed.

Fair dealing with literary, dramatic, musical or artistic work for the following purposes does not constitute infringement.

  • Private use, including research;
  • Criticism or review of that work or any other work;
  • Reporting current events in a newspapers, magazine, periodical, broadcast, cinematograph or photograph.

G. INDONESIA

Several exceptions of copyright have lain down under Indonesian Copyright Act (Act Number 19 Year 2002), provisionally in articles 14-18. Using any creation does not constitutes an infringement of copyright as long the source clearly stated and it is only used for limited action for purposes of unprofitable event, including social event, such as, for the scope of education and knowledge, research and development, with requirement that it will not make disadvantage affects to reasonable interest of creator.

The reasonable interest here means “interest based on balances to get economical benefit of a creation”. Including in this meaning is taking creation of performance or drama for a non-paying audience.

Special case for citing of literary, the original sources shall be stated with clearly and completely citation. In another meaning, we shall state at least the name of creator, the title or the name of creation and the name of publisher. In spite of those, the owner of computer programme allowed to make a copy from an original copy of his own computer programme only for the purpose of using that duplicate copy as a back up.

Article 14 of Indonesian Copyright Act lay down that using or copying an official symbol of state and national anthem with their original character does not constitute an infringement of copyright. It will be same with the case of taking actual news, either all of news or only a half of news from a news station, news institution and newspaper or any sources, with the requirement that the source shall be clearly stated.

CONCLUSION

Fair dealing is a doctrine of limitations and exceptions to copyright which is found in almost every countries. Fair dealing is also an enumerated set of possible defenses against an action for infringement of an exclusive right of copyright. The United State and India have the most different concept of Fair Dealing amongst countries. But general principal purposes of those countries for which the Fair Dealing may be used are still similar with other countries. The purposes are for research and private study, criticism and review, and news reporting.

— END —

[Pan Mohamad Faiz is a Postgraduate Student of M.C.L. (Master of Comparative Law) at Faculty of Law, University of Delhi and a Researcher at the Constitutional Court of the Republic of Indonesia. The Writer can be reached at pm_faiz_kw@yahoo.com or http://faizlawjournal.blogspot.com.]

MAIN REFERENCES:

  • Bansal, Ashwani Kr., Material on Copyright Law, Center for Law, Intellectual Propety & Trade, Delhi, 2004.
  • Cornish, W.R., Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, 2nd Edition, University of Cambridge, London, 1993.
  • Narayanan, P., Copyright Law, Eastern Law House Private Ltd., Calcutta, 1986.
  • Richard, Hugues G., Fair Dealing: Criticism, Review and Newspaper Summaries, Leger Robic Richard Lawfirm, Canada, 1994.
  • “An Outline of US Copyright, Patent and Trademark Law”, http://en.wikibooks.or/wiki/US_Copyright_Law.
  • Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPs”).
  • Berne Convention.
  • WIPO Copyright Treaty.
  • U.S. Copyright Act of 1976.
  • Australian Copyright Act 1968.
  • Indian Copyright Act, 1957.
  • Indonesian Copyright Act Number 19 Year 2002.
  • Singapore Copyright Act 1987
  • UK Copyright, Designs and Patents Act 1988.
  • etc.

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