Copyright
Exceptions Fair Dealing
Jane Lambert
5 May
2004
The words "fair dealing" occur in a handful of sections in Chapter III of the Copyright, Designs and Patents Act 1988. They are not defined in the Act though a number of provisions state what is not "fair dealing". For instance, s.29 (4A) provides:
"It is not fair dealing to observe, study or test the functioning of a computer program in order to determine the ideas and principles which underlie any element of the program (these acts being permitted if done in accordance with section 50BA (observing, studying and testing))."
They are often confused with the American concept of "fair dealing" which offers a general, freestanding exception to the exclusive rights conferred by copyright. 17 USC 107 provides:
"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."
The section provides that In determining whether the use made of a work in any particular case is a fair use the following factors are to be considered:
"(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."
According to the US Supreme Court, 17 USC 107 derives from a line of cases that began with Carey v. Kearsley, 4 Esp. 168 (K.B. 1803) in England (see the judgment of Souter J in Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994)) In Carey's case, Lord Ellenborough said at page 170 that
"while I shall think myself bound to secure every man in the enjoyment of his copy right, one must not put manacles upon science."
Similarly, in Emerson v. Davies, 8 F. Cas. 615 (CCD Mass. 1845), one of the early cases in the USA, Storey J said at 619:
"[i]n truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before."
There is nothing remotely like 17 USC 107 in the CDPA though s.16 (3), possibly in combination with other doctrines such as estoppel and implied licence, go some way towards achieving the same effect. The "fair dealing" defence applies to the research and private study, criticism and review and instruction or examination exceptions.
A case that
illustrates the operation of the English doctrine well is
Hyde Park Residence Ltd. v Yelland
and others [2000] EWCA Civ 37, a good example of the
operation of the American doctrine is
Sony Entertainment Inc. and Others v
Connectix Corporation Cornell LII (Case No:99-15852 )
and a judgment that compares and contrasts the two doctrines is
Barbara Hager v
ECW Press Ltd. and Others [1999] 2 FC. 287. The crucial
difference was summarized by Reed J in Hager as follows: "The concept of
'fair dealing' in s.
29,
29.1 and
29.2 of the [Canadian]
Copyright Act is quite different from that of 'fair use' in the United
States. The most significant difference is that under Canadian copyright
law the use of the copied material must come within one of the specific
purposes identified in the statute: research or private study (section
29), criticism or review (section 29.1), or news reporting (section
29.2)."
