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Comparison Between Fair Use and Fair Dealing

  • Introduction

Copyright protects any original work fixed in a tangible medium. The original work can only be used with prior permission from the copyright owner. However, there are certain exceptions to this principle. One of these exceptions includes the concept of fair dealing or fair use.

  • What is Fair Dealing?

Fair dealing is an exception to copyright infringement in common law jurisdictions. The copyright legislations of the common law nations specify what amounts to fair dealing. Fair dealing allows the use of copyrighted material without prior permission from the copyright owner generally for the purpose of research, private study, education, satire, criticism, review and news reporting. However, this depends on the jurisdiction’s legislation and policies. For instance in India, an inclusive list of specific circumstances of fair dealing is adopted under Section 52 of the Copyright Act and the list contains circumstances where the use is said to be fair. Further, in the UK, the exception is decided on the facts of the case and the court has laid down relevant factors to determine such exceptions. Other jurisdictions that rely on fair dealing include Australia, Canada and Ireland among others which have different factors to ascertain fair dealing.

  • What is Fair Use?

Fair use is an exception under most civil law countries including the U.S., Malaysia and Singapore. Fair use does not lay specific purposes for which copyright permission is not required. However, the court decides on various factors, if the use amounts to fair use. For instance, in the US, the following four factors are considered to ascertain if the use amounts to fair use:

  • the purpose of use;

  • the nature of the work;

  • the amount of dealing;

  • the effect of dealing on the original work

These four factors were codified into law in the U.S. under Section 107 of the Copyright Act, 1976 and while all the four factors hold importance, the first and the fourth factor hold greater importance since the purpose and the effect of such use is more likely to determine if the use was fair. Although courts will consider all four aspects when determining fair use, the fair use defense is more likely to be used when the infringing use includes criticism, commentary, news reporting, teaching, scholarship, or research.

  • Fair Dealing v/s Fair Use

Though the two terms fair dealing and fair use may seem synonymous, there is a difference in their scope and meaning. Fair dealing applies only to those uses or exceptions mentioned in the law. However, under fair use, the list is illustrative and very subjective. Fair dealing has a narrower scope compared to fair use as fair dealing can be applied only for the given purposes, while fair use should only pass the test of fairness even if used for a purpose not specified. Fair use is flexible and adaptable to changes leading to uncertainty. Fair dealing exceptions have been argued to be uncertain as well, especially terms such as ‘parody’ and ‘satire’ are not defined by law and there exists few case laws on the same.

  • Conclusion

The concepts of fair use and fair dealings differ in a few subtle but significant ways. Fair dealing jurisdictions are slowly moving towards incorporating a wider fair use principle which is accommodative in the age of technology. That being said, both these principles are necessary in the current scenario to ensure that in certain cases the rights of the copyright owner are protected.



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1 Comment

Jul 23, 2023

Malaysia and Singapore are NOT civil law countries - they are COMMON LAW countries. please amend to avoid confusion.

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