(Photo credits: PunkJr)
Fair dealing is one of the permitted uses in UK Copyright Law that allow a person to carry out certain acts that would have otherwise been considered as an infringement if it wasn’t for the exceptions of fair dealing. The fair dealing exceptions are found in Sections 29 and 30 of the CDPA 1998.
In the UK, there are three fair dealing exceptions provided by the CDPA:
- Fair dealing for the purpose of research or private study. (Section 29(1))
- Fair dealing for the purpose of criticism or review. (Section 30(1))
- Fair dealing for the purpose of reporting current events. (Section 30(2))
It must be noted that the fair dealing exceptions in the UK are very specific exceptions that relate only to the fair use of copyright works ONLY for the specific purposes explicitly mentioned in the CDPA. Unlike the US, where the fair use exception is general exception which the court can hold as a defence for the use of the copyright for ANY purpose as long as the use is fair. The same concept does not exist in UK law as fair dealing only applies to the specific purposes mentioned (Bently). There are obviously other exceptions for other purposes that do not involve the fair dealing concept. These will be discussed in future posts.
The purposes mentioned earlier can operate as a defence for copyright infringement only in circumstances where the copying was fair. The court has established that this is a question of degree and impression. A number of factors may be taken into consideration depending on the facts of the case and the work in question. Such factors include whether or not the work is published or unpublished, how the work was obtained, the amount copied, the use made of the work, the movies for this copying, the consequences to the copying, whether or not the same purpose could be achieved through other methods, and whether or not the original author was acknowledged.
In the case of Hubbard v Vospar [1972] 2 QB 84, Lord Denning said:
“It is impossible to define what is fair dealing. It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be a fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression. As with fair comment in the law of libel, so with fair dealing in the law of copyright. The tribunal of fact must decide.”
There are also additional requirements for each purpose. For fair dealing for the purpose of research or private study, the purpose must be non-commercial research or private study. The term ‘private study’ is defined in Section 178 and it doesn’t include studying that involves a direct or indirect commercial purpose. The defence only applies when the work in question is literary, dramatic, musical, or artistic. It also applies to typographical formats of published works. The exception does not apply to broadcasts, sound recordings or film. The defence will also only apply where there is sufficient acknowledgment.
Fair dealing for the purpose of criticism or review can only be used as a successful exception is the copying was made in relation to a work that is published in the sense that it was previously made available to the public. The section of the work copied must be directly relevant to the review. The case of Time Warner Entertainment Ltd v Channel 4 Television Corporation Plc illustrated that this test is not very onerous. The case involved the use of extracts from a film amounting to 12 minutes or 8% of the film in a 30 minute show. The court held that there is no required format for the program to be held as one relating to a review, that it can extent to ideas in the work, and its social and moral consequences. (Another case is Pro Sieban Media A.G. v Carlton U.K. Television Ltd).
The defence recognizes the value of criticism in society and acknowledges the fact that a person needs to copy some of the work to critique it. This defence also prevents authors from using copyright to control the reviews of their work and what parts of the work may or may not be used in the review. (Bently)
The final fair dealing defence is fair dealing for the purpose of reporting current events. This defence can be used with any work, except photographs, as long as sufficient acknowledgment is made. No acknowledgment is required for sound recording, film, or broadcast when this would be impossible or impractical. In the case of Newspaper Licensing Agency Ltd v Marks & Spencer plc (1999), Lightman J stated that the this defence aims to achieve a balance between the protection of the rights of authors and the wider public interest which includes free speech, he consequently took the view that reporting of current events was a wide exception of indefinite scope that should be interpreted liberally (Murdie, Intellectual Property Law, page 67). {However, in this actual case, the redistribution of photocopied snippets of newspapers went beyond the exception}.