What Makes Something Fair? – A close look at fair dealing

When copyright law was first introduced by the Copyright Act 1710, there were no defences available – is a registered book was copying, it was an infringement. Over the next two hundred years, judicial activism in this area led to a general defence known as “fair use.” The importance of this defence was recognised by Parliament and was included in the 1911 Copyright Act under the new name “fair dealing”.

Today, the fair dealing defences cover three main areas of permitted acts; private study and research, criticism and review, and news reporting. This is an exhaustive list and no other types of use can be covered. These defences are now found in the Copyright, Designs and Patents Act and added to these is an exception for education. While the requirements for each individual area are laid out in the Act, the definition of fairness is not given and so has been developed by the Courts.

Note: There are three main types of work covered by copyright in the UK:

Copyright applies to each of these in different ways, with different durations and different defences available.

Research and Private Study

Fair dealing for the purposes of research and private study is set out in s29 of the Act. This permits any acts that would otherwise infringe copyright, provided that certain relevant conditions are satisfied. For the purpose of research, any fair dealing with typographical arrangements is permitted. Similarly, fair dealing with literary, dramatic, musical or artistic works for the purpose of research is also permitted provided that it is also “for a non-commercial purpose” and that suitable acknowledgement is given. In HM Stationary Office v Green Amps, the High Court held that the non-commercial restriction was breached even though the copying was done during non-commercial research, because the end result was a commercial product.

As with research, fair dealing for the purpose of private study does not infringe the copyright in literary, dramatic, musical or artistic works, or typographical arrangements of published editions. Unlike the research exemptions, there is no requirement, in the statute, for acknowledgement or non-commercial dealing only. While there is limited English case-law on this, in the Australian case De Garis v Neville Jeffress Pidler “study” was found to have its dictionary meaning.

The fair dealing exceptions for research and private study do not cover sound recordings, films or broadcasts. s29 notes that certain acts involving computer programs are also not covered by these exceptions, as they are given specific defences elsewhere in the Act (in particular s50B and s50BA).

In the case of both research and private study, the copying may be done by a party other than the researcher or student, provided that, if the copying is done by a librarian, the relevant conditions concerning libraries (given by regulations) are not breached, or if by others, that the copies are being produced for only one person.

Criticism, Review and Reporting of Current Events

Fair dealing for the purposes of criticism and review is set out in s30 of the Act. This permits fair dealing with any work for the purpose of criticising or reviewing that work, other works, or a performance of a work, provided that sufficient acknowledgement is given. For this defence to apply, the work must have been made available to the public through an authorised act, and a list of example acts is given in s30(1A)(a)-(e). In Pro Sieben v Carlton, the Court of Appeal held that criticism and review “should be interpreted liberally” and were nor limiting to reviewing or criticising the style or content of a particular work and could cover criticism of “the ideas to be found in a work and its social or moral implications.” However, in Ashdown v Telegraph, the Court of Appeal held that criticism could not be used to justify copying the minutes of a meeting when it was the actions of those present being criticised.

This section also provides for an exception to copyright for the purpose of reporting current events, which applies to all works, aside from photographs, provided that sufficient acknowledgement is given. As with criticism and review, the Court of Appeal has held that “current events… should be interpreted liberally” (Pro Sieben v Carlton) and the event need not be “current solely in the sense of recent in time” but of “current interest to the public” (Ashdown v Telegraph).

Education

While the main aim of fair dealing is to cover research and private study, criticism and review, and reporting of current events, it also applies to copying of literary, dramatic, musical and artistic works done for instruction. As with criticism and review, the work must have been published and the copies must be accompanied by sufficient acknowledgement if possible. In addition, the copying must be done by the person giving or receiving instruction and not done by a “reprographic process”.

The Test for Fairness

There is no statutory definition of what dealing is fair. While there are different categories of fair dealing (described above), similar criteria are applied when determining fairness in all cases. The test is objective, and involves asking “whether a fair minded and honest person would have dealt with the copyright work, in the manner that [the defendant] did, for the purpose [specified]” (see Hyde Park v Yelland, at [38]). There is no fixed set of factors for this test, but three important ones have been established:

  • The first main factor is “whether the alleged fair dealing is… commercially competing with the proprietor’s exploitation of the copyright work”. It is not sufficient to show that the dealing is commercial for it to be fair, although some types of fair dealing are restricted to non-commercial use. In BBC v British Satellite Broadcasting the use was fair even though the two companies were commercial competitors.
  • The second factor identified is whether or not the work has already been made available to the public in some form. Again, this does not make fair dealing with unpublished works impossible, but will be a highly relevant factor (as in Beloff v Pressdram). Similarly, it may be enough that the work was circulated to a wide enough group, rather than needing to be published to the entire world (one of the many reasons why the claim in Hubbard v Vosper failed).
  • The third major factor is the amount and importance of the work taken. No more of the work should be taken than is “reasonable or appropriate“, although in some cases this could amount to all of the work if it is small. Similarly, it may be acceptable to copy an entire work in order to select reasonable amounts for a suitable end purpose (as was found to be acceptable in Pro Sieben v Carlton).

While these factors are important, they are not the only ones which can be considered. A set of relevant guidelines was laid out by Mann J in Fraser-Woodward v BBC (at [55]), which lists the above factors and mentions the motives of the user, the true purpose of the work and whether the use “unreasonably prejudice[d] the legitimate interests of the author or conflict[ed] with the author’s normal exploitation of the work.” However, as the test for fairness is defined by precedence rather than statute, there are no absolute rules on what can be relevant, and what will be found fair.

The fair dealing defences are only part of the fifty or so defences found in the Copyright, Designs and Patents Act. They are, however, the most broad and general defences (with the others being specific to certain types of work, purposes and methods of copying). In addition there may be a broad, public interest defence (particularly where Freedom of Expression is involved) but such a defence is rarely used.

If an act restricted by copyright does not fall into one of these categories, the act will be unlawful unless a licence has been obtained from the copyright owner.

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