Evaluating the Fair Dealing in Terms of Copyright Law: A Case Study of the US
This Blog is written by Nayantara Rao from Amity University, Mumbai. Edited by Karan Dutt.
In copyright law, fair dealing is a user’s right permitting use of, or “dealing” with, a work without payment or permission of copyright royalties which is copyright protected. For the purpose of education, satire, parody, criticism, review, research, private study, or news reporting other people’s copyright protected material is allowed to be used by the fair dealing exception, with it being provided that the work which is done by one is ‘fair’. One must always mention the source and author of the work if the purpose is criticism, review or news reporting for it to be fair dealing. Even for private use such as for the purpose of criticism or review or research in most countries fair dealing is permitted. In a ‘fair dealing’ provision such as reproducing musical, literary, dramatic, or artistic work is also extended for the purpose of reporting current events in a cinematograph film or in a newspaper, magazine or similar periodical or by broadcast or by means of photographs or using excerpts of a performance or of a broadcast in the reporting of current events or for bonafide teaching, review or research.
In the U.S. the fair dealing term has a distinct implication.
SIGNIFICANCE OF THIS DEVELOPMENT
Ensuring that the rights of copyright holders are properly balanced with the need for progress within society to use copyrighted content and also with the First Amendment’s freedom of expression is essentially why fair use was designed. On a case by case basis, the fair use can be applied under certain conditions and is determined individually. The copyrighted content, when the fair use applies, can be used without permission or payment.
In the courts of England in the eighteenth century, fair dealing was first developed and was codified in the year of 1911. In the legislation of UK, for a work for the purposes of “private study, research, criticism, review, or newspaper summary” an exception to the infringement was provided for in fair dealing. In the former British Imperial territories, which as of now are referred to as the Commonwealth countries, fair dealings have been incorporated into their individual copyright laws. The fair dealing statutes, however over the past century has evolved in many of the Commonwealth countries, such as in Bangladesh and some countries the term “fair dealing” has been replaced with “fair use”. The fair dealing statutes in many countries, thus have over the time increasingly started to resemble the fair use statute of the United States of America. Judicial interpretations of fair dealings, additionally, in Canada and certain other countries are now similar to the United States’ judicial interpretations of fair use.
PROVISION IN THE LEGISLATURE
A part of the Copyright Act of 1976 of the U.S. is the fair use doctrine which is the absolute ownership of copyrighted work and an exception to copyright law in the U.S. The doctrine allows others for encouraging freedom of expression in specific circumstances to use the portions of copyrighted work or the whole of it without permission. Section 107, states the limitations of fair use on exclusive rights. Regardless of the provisions of sections 106 and 106A of the copyright Act, the fair use of a copyrighted work, which includes such use by reproduction in copies or phone records or by any other means which is specified by the section, for purposes such as comment, criticism, news reporting, teaching (For instance multiple copies for classroom use), scholarship, or research, will not be an infringement of copyright. The factors which are to be considered while determining whether the use made of any work in any particular case is a fair use must include the following points—
• In particular cases where the use is of a commercial nature or for non-profit educational purposes, the purpose and the character of usage; the character of use is more likely to be deemed fair use than the purpose.
• When the work has been altered in some way which is considered as the use is “transformative,” which means that it adds something new and valuable to the work, rather than it being used as is. A transformative use can include parody.
• The copyrighted work’s nature. Works that are educational in nature like quotes, such as an article written in an academic journal, is more likely to support a fair use claim than any creative works, like novels, because the public and copyright protections are benefitted by the dissemination of factual information benefits which then helps to focus on encouraging creative expression. Use of a work that has been published is considered to be more likely to be considered fair than an unpublished work.
• The substantiality and amount of the work which is used in proportion to the whole written work. Both the quantity and quality of usage is supposed to be looked after by a court when it is going to determine the validity of the defence of a fair use. An example could be that it might be reasonable to include a paragraph from a novel series but not a paragraph of similar size from a short story.
• If the current or potential market or value for the original work is effected by its use. It is less likely to be considered fair use if an unlicensed use of the work could deprive the owner of the work, his or her income.
The concept parallel to that of fair dealings in United States copyright law is fair use. The duty of full disclosure imposed upon corporate officers, fiduciaries, and parties to contracts is known as fair dealings. Usually in the reported cases, it arises in the “implied covenant of good faith and fair dealing,” concept which has the underlies of the tort of cause of action for insurance bad faith.
On the entirety of circumstances, on a case-by-case basis, the fair use is decided. The same act done for a different purpose or by different means can lose or gain the fair use status. Because of changing technological, social, or other surrounding circumstances, even repeating an identical act at a different time can make a huge difference.
Justice Story’s 1841 decision in Folsom v. Marsh is what fair use of the United States is attributed to, it was based on the English fair dealing case law. It was alleged by the plaintiffs that the defendants by publishing, verbatim, copies of the letters of former President George Washington had invaded its copyright. A little more than a third of defendants’ publication had been scattered with official letters and documents, and private letters written by Washington which had never been published earlier.
A narrative of Washington’s life with explanatory notes and illustrations by the editor was what was contained by the rest of the publication. Fair use was codified by the congress in the Copyright Act of 1976. Section 107 of the said act provides that the fair use is not an infringement of copyright when it is done for the for purposes such as criticism, comment, news reporting, teaching , scholarship and research . Then Section 107 lists around four factors which are supposed to be included in the determination of whether the use made of a work in any particular case is a fair use.
Section 107 in other terms for fair use sets forth some exclusive purposes and non-exclusive factors. Although generally fair use is considered to be more open-ended and flexible than a fair dealing, this had been different in the case of Folsom v. Marsh, as the circuit court had held that plaintiffs’ copyright had been pirated (violated) because defendants’ publication was not a fair nor was it in a bona fide abridgment of the original work published. There was no substantial or real condensation of the materials which could be considered to be constituting a true labor of the intellect. There was no reason why another bookseller could not do the what was done by the defendants longer the case in many Commonwealth countries as the defendants could take 319 letters which was included in plaintiffs’ copyright, and which exclusively belonged to them.
Over one-third of the world’s population which is covered by more than 40 countries have the provisions of fair use or fair dealing in their copyright laws. These countries are in all levels of development and various regions of the world. The fair use’s and fair dealing’s broad diffusion indicates for preventing the more widespread adoption of these doctrines, there is no basis, with the benefits their flexibility brings to authors, publishers, consumers, technology companies, libraries, museums, educational institutions, and governments. Thus since most of the countries have these doctrines it is easier to balance copyrights in an international level.
An enumerated set of possible defences against an action for infringement of an exclusive right of copyright is a fair dealing. Fair dealing, unlike the related United States doctrine of fair use, cannot be applied to any act which does not fall within one of these categories, although common law courts in some jurisdictions are less stringent than others in this regard. As fair dealing is not as flexible a concept as the American concept of fair use, 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,.
(1) “The Fair Use/Fair Dealing Handbook” (PDF). infojustice.org. American University Program on Information Justice and Intellectual Property.