This post is based on a piece we were asked to write by Kyle Courtney, on the first day of Fair Use week. The original post is on the Copyright at Harvard Library blog.
It’s incredibly exciting that for the first time, the UK is participating in Fair Use Week, or in our case, Fair Dealing Week. As two committed copyright enthusiasts we wanted to tell you about why we decided to get UK universities, libraries, and cultural institutions involved in the event. We also wanted to explain a bit about what fair dealing is, how it relates to fair use, and also why being late to the party isn’t so bad (in fact it provides an opportunity to explore a bit of copyright history).
As readers of this blog will know, our work has really accelerated since 2020. We have been running a regular webinar series on the topic of copyright and online learning since March 2020, and in November 2020 we co-founded the Association for Learning Technology’s Copyright and Online Learning (CoOL) Special Interest Group. This reflects the growth in interest in copyright in the education sector since the pandemic. It was under the auspices of this group that we got involved with Fair Dealing Week. Kyle K Courtney is the CoOL SIG’s international representative, and we’ve been hugely inspired by Kyle’s work on the Copyright First Responders programme and his championing of copyright exceptions through the continued creation, promotion, and expansion of Fair Use Week. In the last few years we’ve focused a lot of our efforts into helping the education community in the UK understand how copyright exceptions work and their relationship to licenses. This involves grappling with the concept of fair dealing and balancing the risk of using works under fair dealing exceptions against the risk of failing our students by not providing them with educational resources or opportunities to learn by creating work based on the work of others.
Fair Dealing and the origins of Fair Use
When we talk to people about copyright, they usually refer to the more widely known term fair use, rather than the slightly confusingly worded term ‘fair dealing.’ This prompts us to talk about the differences between the two.
Fair use is a legal doctrine in the US Copyright Act, which allows use of copyright material without the permission of the copyright owner, according to a ‘four factor’ test. It’s traditionally considered to be a more flexible and broader doctrine than the delimited UK concept of fair dealing. However, we will see they come from the same origins and do serve a very similar purpose, of providing balance in copyright laws by limiting the otherwise expansive exclusive rights conferred on rights holders.
The common origin of both fair and use and fair dealing comes from English court cases of the 18th century which considered the extent to which abridgements of literary works were fair. These ‘fair abridgement’ cases are described by Professor Ronan Deazley with his customary verve and flair in the article ‘The Statute of Anne and the Great Abridgement Swindle’.[i] The relevance of them to the US doctrine is also described in Matthew Sag’s seminal article ‘The Pre-History of Fair Use’.[ii] This common history between fair use and fair dealing is reflected in the fact that Commonwealth (i.e. ex-British colonial) countries such as Australia, Canada, New Zealand and India also have fair dealing provisions.
However, despite their common ancestry there are some key differences. Unlike fair use, fair dealing is not defined in the UK statute – this means that its meaning comes almost entirely from a reading of the case law. In addition to this UK fair dealing is not described as a ‘user right’ in the same way that fair use is in the US, or in the way that fair dealing is under Canadian law. Another difference is that the concept of ‘transformative use’ as defined by Justice Leval[iii] has not been adopted by the British courts when looking at fair dealing, in the same way as has been done in the US. And finally a key difference is that UK fair dealing provisions can only be applied to four specific types of activity – quotation (including criticism and review and news reporting), non-commercial research and private study, illustration for instruction (i.e. teaching) and caricature, parody and pastiche.
But even with these differences, fair use and fair dealing share the same aim in determining how a ‘fair and honest minded person’ would deal with a copyright work if they didn’t have permission. When we play copyright the card game, we ask people to consider the following questions associated with fair dealing:
- Does using the work affect the market for the original work? Does it affect or substitute the normal exploitation of the work?
- Is the amount of the work taken reasonable and appropriate? Was it necessary to use the amount?
Those familiar with the four factors of fair use will find these questions looking very familiar. And in fact Professors Tanya Aplin and Lionel Bently have recently argued that the Berne Convention creates a ‘Global Mandatory Fair Use’ requirement that requires all jurisdictions to adopt fair use or an equivalent broadly framed fair practice exception.
Whilst we find the latest cutting edge scholarship fascinating from our perspective of being copyright geeks, we are also aware that as educators we need to frame these issues in ways that communities are able to engage with. We have noticed that teachers and lecturers often feel uncertain about how copyright works, leading some to avoid using specific content for teaching and others to believe that anything goes. We also note that they often want to be given a simple and clear answer on whether their proposed activity is lawful – something which rights holders often refer to as the benefit of providing content under license.
We believe it’s important that we do make use of the flexibility provided by copyright exceptions as a vital supplement to licenses. Obtaining permission or a license for a work is not always practical, for example of when a lecturer uses an image in a slide to illustrate a point in their teaching, or shows a clip of a video, or may need to quote some text. We tend to advise those wishing to rely on a copyright exception to weigh this up by looking at whether licenses are available, whether getting permission is feasible and how much of an appetite they, or their organisation have for risk.
We are therefore absolutely delighted to be fusing all of these different aspects of fair dealing together in a fantastic programme of events. We will be hearing from leading UK scholars, researchers, teachers, film makers and a host of others across multiple cultural and creative organisations.
[i] Ronan Deazley, The Statute of Anne and the Great Abridgement Swindle, 47 Hous. L. Rev. (2010). Available at: https://houstonlawreview.org/article/4174-the-statute-of-anne-and-the-great-abridgement-swindle
[ii] Sag, Matthew, The Pre-History of Fair Use, 76 BROOK. LAW REV. 1371 (2011). Available at: https://lawecommons.luc.edu/cgi/viewcontent.cgi?article=1157&context=facpubs
[iii] Pierre N. Leval, Toward a Fair Use Standard, Harvard Law Review Vol. 103, No. 5 (Mar., 1990), pp. 1105-1136 (32 pages) Published By: The Harvard Law Review Association https://doi.org/10.2307/1341457 https://www.jstor.org/stable/1341457