Distinguishing the Fair Use and Fair Dealing Doctrines in Copyright Law—much Ado about Nothing?

The doctrine of fair use in US copyright jurisprudence has long been considered ‘the most troublesome in the whole law of copyright’.¹ Codified in section 107 of the US Copyright Act 1976,² the fair use provision ‘reflects its judge-made origins’³ as Congress had intended ‘to restate the present judicial doctrine of fair use, not to change, narrow or enlarge it in any way’.⁴ Fair use, which is ‘a mixed question of law and fact’, has also been described as ‘an equitable rule of reason’ with ‘no generally applicable definition’; as such, ‘each case raising the question must be decided on its own facts’.⁵ In a nutshell, the following key attributes of the doctrine are discernible from the case law:

1. fair use is ‘an affirmative defense requiring a case-by-case analysis’;⁶

2. because fair use of copyrighted material is seen ‘to fulfil copyright’s very purpose [to promote the Progress of Science and useful Arts]’,⁷ the application of the doctrine ‘requires judicial balancing’⁸ ‘between creativity and availability’;⁹

3. accordingly, fair use is a ‘flexible’ concept, whose ‘application may well vary depending upon context’.¹⁰

Section 107 sets out a non-exhaustive list of fair use or fairness ‘factors’, and the illustrative examples of fair use provided in the preamble likewise do not constitute a closed list. It reads as follows:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit 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.

Broadly speaking, it is well accepted that ‘a use that “supersede[s] the use of the original”’¹¹ cannot qualify as fair use.

Turning to Canada, the UK and Australia, fair dealing—rather than fair use—is a statutory defense /exception to copyright infringement. Canada’s fair dealing exception has been described as ‘a user’s right’ which ‘must not be interpreted restrictively’.¹² Still, to qualify for fair dealing, two requirements must be satisfied. First, the dealing in question must fall within one of the allowable purposes specified in the Canadian Copyright Act 1985.¹³ The enumerated purposes are research, private study, education, parody, satire, criticism or review and news reporting. Second, the said dealing must be adjudged fair. The party raising fair dealing must, in short, prove that the dealing was for an allowable purpose and that it was fair.

Likewise, the fair dealing provisions in UK law also apply to a closed list of permitted uses/purposes—namely, for (non-commercial) research, private study, criticism or review, quotation, reporting current events, ‘caricature, parody or pastiche’ and ‘illustration for instruction’.¹⁴ In other words, unlike the open-ended nature of the fair use exception in the USA, the invocation of the fair dealing defense in the UK is strictly confined to statutorily prescribed purposes or types of use.¹⁵ And the same is true in Australia where fair dealing must be judged in relation to the purposes specified in the Australian Copyright Act 1968 (Cth).¹⁶

Notably, the Australian Copyright Act 1968 (Cth) sets out in section 40(2) a non-exhaustive list of five fairness factors that courts shall have regard to in assessing the fairness of a dealing ‘for the purpose of research or study’. Four of these (namely, factors (a), (b), (d) and (e)) mirror the fair use factors contained in section 107 of the US Copyright Act 1976, while factor (c) concerns ‘the possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price’. Although these five factors have been tagged specifically to the defense of fair dealing ‘for the purpose of research or study’ (in section 40 of the 1968 Act), Katzmann J has helpfully observed that they would also have a bearing on the question of fairness for the purposes of section 41A of the 1968 Act (fair dealing ‘for the purpose of parody or satire’), notwithstanding that section 41A is silent on the factors which must be taken into account in assessing fairness.¹⁷

Unlike Australia, however, Canada and the UK do not provide for a statutory list of fairness factors. Instead, the Canadian Supreme Court in CCH Canadian Ltd v Law Society of Upper Canada (‘CCH Canadian’), drawing on the US fair use exception and UK case law, endorsed the following list of factors (calling it ‘a useful analytical framework’) to help determine the question of fairness:¹⁸

1. the purpose of the dealing;

2. the character of the dealing;

3. the amount of the dealing;

4. (available and reasonable) alternatives to the dealing;¹⁹

5. the nature of the work; and

6. the effect of the dealing on the work.

This list of six factors is clearly non-exhaustive and some factors will obviously be more relevant than others, depending on the specific facts of each case.²⁰ In any event, it was also emphasized that all these factors must be ‘discussed [and] considered together’ before a court arrives at its conclusion on fair dealing.²¹

Over in the UK, Lord Denning’s dicta in Hubbard v Vosper arguably constitute the first major judicial attempt at delineating the notion of ‘fairness’ in relation to the fair dealing provisions.²² It has also been said that the fairness of a dealing is to be judged ‘by the objective standard of whether a fair minded and honest person would have dealt with the copyright work, in the manner that [the defendant] did, for the [statutorily prescribed purpose(s)]’.²³ More recently, however, it appears that a hierarchy of fairness criteria—in the general context of section 30 of the UK Copyright, Designs and Patents Act 1988 (‘CDPA’)—has emerged from the case law of the Court of Appeal of England and Wales, in the following order:²⁴

1. ‘the most important factor’—whether the infringing act is ‘commercially competing with’ or a market ‘substitute’ for the copyright work (if so, the defense ‘will almost certainly fail’);

2. ‘the second most important factor’—whether the copyright work ‘has already been published or otherwise exposed to the public’ (if not, the dealing is unlikely to be fair, especially if the work was ‘obtained by a breach of confidence or other mean or underhand dealing’);

3. ‘the third most important factor’—‘the amount and importance of the work that has been taken’ (for instance, ‘in some circumstances the taking of an excessive amount, or the taking of even a small amount if on a regular basis, would negate fair dealing’).

As with the fair use exception in the USA, whether the dealing concerned is fair in the copyright sense in Canada, the UK and Australia is equally a question of fact, degree and impression and dependent on the facts of each case.²⁵

Given this overview of the state of the law in the USA, Canada, the UK and Australia vis-à-vis the copyright fair use and fair dealing doctrines, one can reasonably discern (at least prima facie) that the main—and as this author argues, the only—difference in the approaches taken by these jurisdictions concerns the ‘open v closed’ formats inherent in their respective legislative frameworks.

The fair use provision in the USA—with its ‘open’ list of illustrative purposes that might, in law, be considered fair²⁶—has the obvious advantage of flexibility. Because fair use is not limited by statute to a set of prescribed purposes, the US courts have the latitude to develop and adapt their fair use jurisprudence on a case-by-case basis as well as in response to individual fact patterns. The fair dealing provisions, on the other hand, have been argued to have the opposite effect with their pre-determined list of allowable/approved purposes. However, beyond this (principally structural) difference in statutory frameworks, it will be argued below that both the fair use and fair dealing doctrines do, in actuality, share many commonalities, particularly in regard to the courts’ assessment of the ‘fairness’ or otherwise of the use/dealing in question. It is in this context that the US experience with fair use might offer fair dealing jurisdictions such as Canada, UK and Australia some useful guidance—wherever appropriate—as to how the ‘fairness’ analysis for this particular set of defences/exceptions may be approached and effected.

Before embarking on a discussion of these matters, however, it is proposed that the article first surveys how the US courts, in the course of a fairly long history, have considered and applied the various statutory fairness factors in their analysis of the fair use exception in copyright infringement proceedings. How the courts in Canada, the UK and Australia, in turn, take into account a range of fairness considerations (either judicially recognized or imposed by statute) in their corresponding analysis of the fair dealing provisions will also be examined at appropriate junctures in this next part of the article for comparative purposes. The article will then consider in Part III the relevance of the ‘public interest’ and ‘freedom of expression’ before turning to the author’s own observations on copyright’s fair use and fair dealing doctrines in Part IV. The conclusion follows...