Fair Dealing in UK Law

Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Fair dealing requires that a supplier should not, whether deliberately or unconsciously, take advantage of the consumer's necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position or any other factor listed in or analogous to those listed in Schedule 2 of the regulations.

But, in a case where there is no evidence of any discussion between them as to the amount of the share which each was to have – and even in a case where the evidence is that there was no discussion on that point – the question still requires an answer. It must now be accepted that (at least in this Court and below) the answer is that each is entitled to that share which the court considers fair having regard to the whole course of dealing between them in relation to the property.

I can see no reason why Parliament should have intended, in the absence of some overriding element of public advantage, to permit one person to deal with copyright work to his own commercial advantage and to the actual or potential commercial disadvantage of the copyright owner; and no reason why what would otherwise be an infringement of the rights of the owner of copyright in typographical arrangement should be permitted simply because the particular commercial advantage to be obtained was a more convenient (or less costly) means of disseminating reports of current events within a commercial organisation by the circulation of facsimile copies of press cuttings.

'Criticism or review' and 'reporting current events' are expressions of wide and indefinite scope. Any attempt to plot their precise boundaries is doomed to failure. They are expressions which should be interpreted liberally, but I derive little assistance from comparisons with other expressions such as 'current affairs' or 'news' (the latter word being used in the Australian statute considered in De Garis v Neville Jeffress Pidler (1990) 18 IPR 292).

The principle of openness and fair dealing between the parties to an arbitration demands not merely that if jurisdiction is to be challenged under section 67 the issue as to jurisdiction must normally have been raised at least on some grounds before the arbitrator but that each ground of challenge to his jurisdiction must previously have been raised before the arbitrator if it is to be raised under a section 67 application challenging the award.