Fair dealing

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 practice, common law courts might rule that actions with a commercial character, which might be naïvely 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.

Fair dealing by country

Australia

In Australia, the grounds for fair dealing are:

Research and study (section 40 Copyright Act 1968 (Cth))
Review and criticism (s41)
"Reporting the news" (s42)
Legal advice (although the federal Crown is deemed to own copyright in federal statutes, and the Crown in each State in state statutes). (s43)
Parody and Satire (with some exceptions) (s41A)

Australia has a deeming provision which guarantees that fair dealing applies if you photocopy either "not more than one chapter", or "less than 9.99%" 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).

Regarding the re-use of copyrighted images or drawings, the Australian Copyright Act does not impose a 10%-limit under its fair dealing provisions for the purpose of research and study. Instead, each and every such use for research or study must be evaluated individually to determine whether it is fair, similar to the notion of fair use in U.S. copyright law. Among the criteria used to determine the fairness of a use are the purpose and character of the dealing, the nature of the work, the possibility of obtaining the work commercially within a reasonable time, the effect of the use on the potential market for the work or on its value, and how much of a work is copied.

In 2006, a federal law (Copyright Amendment Act 2006 (Cth) No. 158, 2006) enabled parody and satire to qualify as fair dealing under federal copyright law in certain circumstances. [1].

The amendments in 2006 also added a number of other very specific and quite limited exceptions to copyright for personal use of AV material, including those popularly known as 'time shifting' (s111) and 'format shifting' (s110AA).

Canada

The Canadian concept of fair dealing is similar to that in the UK and Australia. The fair dealing clauses^[1] of the Canadian Copyright Act allow users to engage in certain activities relating to research, private study, criticism, review, or news reporting. With respect to criticism, review, and news reporting, the user must mention the source of the material, along with the name of the author, performer, maker, or broadcaster for the dealing to be fair. It is important to note that unlike fair use in the United States, which recognizes that parody can be fair, fair dealing in Canada has not definitely been found to contain exceptions for parody. A Quebec Court of Appeal in Les productions Avanti Cine Video v. Favreau (4 Aug 1999) recognized that parody could potentially be a 'critique', however it refused to recognize the exception in that circumstances as the defendants had tried to 'capitalize on' the popularity of the original work.

The 2004 ruling by the Supreme Court of Canada in CCH Canadian Ltd. v. Law Society of Upper Canada has gone far in clarifying the concept of fair dealing in Canada. In considering fair dealing the Court makes the following general observation:

It is important to clarify some general considerations about exceptions to copyright infringement. Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user's right. In order to maintain the proper balance between the rights of a copyright owner and users' interests, it must not be interpreted restrictively.

Furthermore, by taking "a liberal approach to the enumerated purposes of the dealing", the Court has made fair dealing more flexible, reducing the gap between this provision and US fair use^[2]

It then establishes six principal criteria for evaluating fair dealing.

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." In particular, the Court gave a "a large and liberal interpretation" to the notion of research, stating that "lawyers carrying on the business of law for profit are conducting research".
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 being used? What is the general practice in 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 as there would not be copyright infringement at all. In some cases even quoting the entire work may be fair dealing. The amount of the work taken must be fair in light of the purpose of the dealing.
Alternatives to the Dealing Was a "non-copyrighted equivalent of the work" available to the user? Was the dealing "reasonably necessary to achieve the ultimate purpose"?
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."

Though the Supreme Court outlined these six criteria, it noted that in some contexts, factors other than those listed may be relevant in determining whether a particular dealing is fair.

New Zealand

In New Zealand, fair dealing includes some copying for private study, research, criticism, review, and news reporting. Sections 42 and 43 of the Copyright Act 1994 set out the types of copying that qualify. The criteria are perhaps most similar to those applying in the UK, although commercial research can still count as fair dealing in New Zealand. Incidental copying, while allowed, is not defined as "fair dealing" under the Act. As in Canada, fair dealing is not an infringement of copyright.

The factors determining whether copying for research or private study is judged to be fair dealing in New Zealand are its purpose, its effect on the potential market or value of the work copied, the nature of the work, the amount copied in relation to the whole work, and whether or not the work could have been obtained in a reasonable time at an ordinary commercial price.

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.

It is not an infringement if a person makes a copy from an original copy of a computer program which he or she owns for the purpose of using that duplicate copy as a back-up.^[3]

South Africa

In South Africa, fair dealing is dealt with in the Copyright Act of 1978 (Act 98 of 1978, including subsequent amendments). Fair dealing itself is described in section 12(1) of the Act, whereas sections 13 to 19 explains various exceptions to copyright. Section 20 deals with the author's moral rights, which, if infringed, may also impact on a fair dealing ruling.

According to this Act,

Copyright shall not be infringed by any fair dealing with a literary or musical work

(a) for the purposes of research or private study by, or the personal or private use of, the person using the work;

(b) for the purposes of criticism or review of that work or of another work; or

(c) for the purpose of reporting current events

(i) in a newspaper, magazine or similar periodical; or

(ii) by means of broadcasting or in a cinematograph film;

Provided that, in the case of paragraphs (b) and (c)(i), the source shall be mentioned, as well as the name of the author if it appears on the work.

Section 12 mentions both "fair dealing" and "fair practice", and it would seem that these two terms are equivalents. Musical works are compositions, not music recordings. The fair dealing exceptions do not apply to music recordings.

United Kingdom

Under the Copyright, Designs and Patents Act 1988 (CDPA), fair dealing is limited to the following purposes: research and private study (both non-commercial), criticism, review, and news reporting (s. 29, 30, 178). Although not actually defined as a fair dealing, incidental inclusion of a copyrighted work in an artistic work, sound recording, film, broadcast or cable programme doesn't infringe copyright.

Contrary to the often stated view, the provisions of section 29 of the CDPA do not restrict the amount of a literary, dramatic, musical or artistic work that may be copied for the purposes of non-commercial research or private study to a "reasonable proportion" of the work or to single copies of the work, where the copies are made by the researcher or student himself. Such restrictions only apply to copies made by or on behalf of a librarian (by virtue of s. 40), or by a person, other than the researcher or student himself, who knows or has reason to believe that "it will result in copies of substantially the same material being provided to more than one person at substantially the same time and for substantially the same purpose" (by virtue of parag. s. 29(3)b).

For copying beyond the boundaries of fair dealing, universities and schools in the UK obtain licences from a national copyright collective, the UK Copyright Licensing Agency (CLA). Under these licences, multiple copies of portions of copyrighted works can be made for educational purposes.

United States

The parallel concept in United States copyright law is fair use. The term "fair dealing" has a different meaning in the U.S. It is a duty of full disclosure imposed upon corporate officers, fiduciaries, and parties to contracts. In the reported cases, it usually arises in the context of the "implied covenant of good faith and fair dealing," which underlies the tort cause of action for insurance bad faith. See, e.g., Davis v. Blue Cross of Northern California, 25 Cal. 3d 418 (1979) (health insurer breached covenant by failing to meaningfully advise insureds of arbitration clause).

References

^ D’Agostino, G: "Healing fair dealing? A comparative copyright analysis of Canada’s fair dealing to U.K. fair dealing and U.S. fair use", McGill Law Journal, 53:311-363
^ http://www.experiencefestival.com/a/Fair_dealing_-_Fair_dealing_in_Singapore/id/5038873

External links

Australian Fair Dealing (statute)
Fair dealing in Australia (PDF file, 111 KB).
Fair dealing for research and study in Australia (PDF, 26 KB).
Fair Dealing in Canada (Copyright Act
CCH Canadian Ltd. v. Law Society of Upper Canada
Association of Universities and Colleges of Canada Copyright Guide (PDF file)
Fair dealing under Singapore law of 1987
Fair dealing under Australian law
Guidelines for librarians on the NZ Copyright Act 1994 (see sections 11 and 13 in particular, and appendix 1)
Fair Dealing in Indian law
South African Copyright Act

[Canadian_Fair_Dealing_Statute-1] "Copyright Act of Canada". Retrieved 7 January 2010.

[2] D’Agostino, G: "Healing fair dealing? A comparative copyright analysis of Canada’s fair dealing to U.K. fair dealing and U.S. fair use", McGill Law Journal, 53:311-363

[3] ttp://www.experiencefestival.com/a/Fair_dealing_-_Fair_dealing_in_Singapore/id/5038873

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