Fair Dealing and Fair Use on Copyright Law

LEGAL CONCEPT OF FAIR DEALING IN SELECTED COUNTRIES:
A Comparative Study under Copyright Law of India, United Kingdom,
United States, Australia and Germany

Author: Pan Mohamad Faiz
Subject: Intellectual Property Rights and Copyright
Time: January 2007

The general purpose of intellectual property protection, and more specifically, copyright protection, is to provide authors with incentives to create, by providing ‘an avenue for obtaining remuneration’. Although the ultimate goal of copyright law is ‘the promotion, advancement and dissemination of culture and knowledge’, the copyright market corrects the public good nature of copyrighted work by providing author compensation, thereby excluding non-purchasers and promoting voluntary transfer between authors and users. Just like in any other market situation with voluntary participation, through this mechanism, the interests of authors and the public will find a point of convergence: the possibility of remuneration prompts authors to produce and distribute work, thereby serving the public interest in the advancement and dissemination of science and art.

Copyright’s basis as a proprietary concept is that it enables one to protect his or her own creations. Its regulatory basis is that when these creations constitute the expression of ideas presented to the public, they become part of the stream of information whose unimpeded flow is critical to a free society. Copyright is often considered “the right of an author to control the reproduction of his intellectual property.” The author loses actual control over his or her work by publishing it.

Therefore, copyright assures not only that the author keeps his or her work under control, by preventing unauthorized copying, but it also assures that he or she earns the benefits from the intellectual labor. It can be considered an incentive for publishing his or her work. Copyright also works as a compensation for the financial risks the author accepts by publishing his or her work. Without copyright protection, an author might refuse to publish his or her work, so that, in the end, the public might not enjoy it.

The benefit that the author enjoys through copyright protection is problematic: the author’s sole right to copy her work contrasts with public interests, such as social, political, educational and cultural roles. Some believe that this information should be considered public goods and, therefore, not be protected by copyright law. The right to control access to one’s own expressions before publication does not engender free speech concerns, but publishers’ control of access after publication does. This explains why historically copyright was deemed a monopoly to be strictly construed and to be shaped to serve the public interest over that of the copyright owner. The public interest to be served was reasonable access to the copyrighted work.

In order to solve this quandary, countries, like United Kingdom, the United States or other countries where authors enjoy copyright protection, tried to create a balance between the authors’ sole right of copying on the one hand and public interest in using the authors’ work on the other. Even when the author enjoys copyright, his protection is often subject to many limits. An example of these limits is the duration of copyrighted works respectively.

Countries have developed a whole catalogue of limitations. In India and UK, one of these limitations of copyright protection is the fair dealing. Meanwhile in the United States it is called as fair use doctrine. Fair dealing essentially gives the public a right to copy an author’s work for the purpose of criticism, parody, or educational use without her permission. Fair dealing is often defined as the “privilege in others than the owner of a copyright to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner.”

This legal research puts aside outcome driven analysis and examines the larger role fair dealing defence and fair use doctrine serves within copyright law from selected countries, namely India, United Kingdom, United State of America, Australia and Germany. Despite those countries have been growing fast in their copyright law development, all the countries are also members of the Berne Convention as well as the TRIPS Agreement. According to Article 9 Paragraph 2 of the Berne Convention and Article 13 of the TRIPS Agreement, the so-called “three step test” applies, granting limitations of copyright only when limitations “do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.”

Moreover, this legal research tried to explain and examine the legal concept of fair dealing and fair use for protecting the side of public interests. The research structure is following:

LEGAL CONCEPT OF FAIR DEALING IN SELECTED COUNTRIES:
A Comparative Study under Copyright Law of India, United Kingdom,
United States, Australia and Germany

ACKNOWLEDGMENT
CONTENTS
TABLE OF CASES
ABSTRACT

CHAPTER I: INTRODUCTION
1.1. Background to Research Paper
1.2. Objectives
1.3. Research Methodology
1.4. Structure of Research Paper

CHAPTER II: AN OVERVIEW OF COPYRIGHT
2.1. Introduction of Copyright
2.1.1. Definition of Copyright
2.1.2. Object of Copyright
2.1.3. International Convention and the Statutory
2.1.4. Extension of Copyright and Allied Right
2.2. Nature of Copyright
2.2.1. General
2.2.2. Scope of Copyright
2.2.3. Original Work and Nature of Right
2.3. Author and Ownership of Copyright
2.3.1. The Author
2.3.2. Author an Employee
2.3.3. Commissioned Works
2.3.4. Miscellaneous
2.4. Infringement of Copyright
2.4.1. General
2.4.2. Definition of Infringement and Infringing Copy
2.4.3. Copyright Protects and the Essential of Infringement
2.4.4. Factors Considered
2.4.5. Causal Connection and Indirect Copying

CHAPTER III: FAIR DEALING UNDER INDIAN AND UNITED KINGDOM COPYRIGHT ACT

PART I: INDIA
3.1. Introdcution
3.2. Legal Concept
3.2.1. Phrase of Fair Dealing
3.2.2. Private Use and Research
3.2.3. Criticism and Review: Reporting Current Events

PART II: UNITED KINGDOM
3.1. Introduction
3.2. The Development of Fair Dealing Defence
3.3. Legal Concept
3.3.1. Research and Private Study
3.3.1.1. Research and Private Study
3.3.1.2. Copying by a Person other than the Student or Researcher
3.3.1.3. Commercial Research
3.3.1.4. Computer Database
3.3.1.5. Database
3.3.2. Criticism, Review and News Reporting
3.3.2.1. Criticism and Review
3.3.2.2. Criticism and Review “of a work”
3.3.2.3. Work Reproduced Need to be Work Criticized
3.3.2.4. Parody, Burlesque and Satire
3.3.2.5. Reporting Current Events
3.3.2.6. Avoidance of Certain Terms Relating to News Reporting
3.3.2.7. Sufficient Acknowledgment
3.4. The Concept of Fairness
3.4.1. The Meaning of Fairness
3.4.2. An Objective Test

CHAPTER IV: FAIR USE DOCTRINE IN UNITED STATES
4.1. Introduction
4.2. The Development of Fair Use
4.2.1. Fair Use before the Copyright Act of 1976
4.2.2. The Codification of Fair Use in the Copyright Act 1976
4.3. Legal Concept
4.4. Factors of Fair Use
4.4.1. Purpose and Character of the Use
4.4.2. Nature of the Copyrighted Work
4.4.3. Amount and Substantiality of the Portion Used
4.4.4. Market Effect
4.5. Practical Effect of Fair Use Defence
4.5.1. Fair Use as Defence
4.5.2. Fair Use and Parody
4.5.3. Fair Use on the Internet

CHAPTER V: FAIR DEALING IN THE LIGHT OF AUSTRALIAN AND GERMAN EXPERIENCE

PART I: AUSTRALIA
5.1. Introduction
5.2. Personal Use
5.3. Authorisation of Copyright Infringement
5.4. Case Examples
5.4.1. Photocopiers
5.4.2. Kazaa in Australia

PART II: GERMANY
5.1. Introduction
5.2. Parody
5.2.1. Music Parody
5.2.2. Other Forms of Parody
5.3. Photocopying
5.3.1. Archives
5.3.2. Copying by Someone other than the Copyright Owner
5.3.3. Commercial vs. Non-Profit Use
5.4. News, Videotaping and Computer Programs
5.4.1. News Reporting, Criticism and Comments
5.4.2. Videotaping
5.4.3. Computer Programs
5.5. Photos of Artistic Works in Public Places

CHAPTER VI: CONCLUSIONS AND SUGGESTIONS
5.1. Conclusions
5.2. Suggestions

BIBLIOGRAPHY

Concept of limitation and exception on copyright regarding to Fair Dealing or Fair Use in various countries are quite interesting to be discussed. The description and analysis of every case in selected court of other countries can be a reference or maybe also as a recommendation for the legislator of copyright act in our own country as well as good knowledge not only for law practitioner but also for journalist, student, lecturer, researcher, librarian and public society. This is due to in every our daily activities we always find many goods and things which are related with clause of copyright. Consequently, it is important for us to distinguish an act in respond of any author’s work without constitute infringement of copyright law which are ruled by every its own country.

As my moral and academic responsibility, therefore for everybody who wants to read more completely and get the research paper in detail, they can lodge a request by write down in a comment facility under this article including with its aim.

Best Regards

New Delhi,

© Pan Mohamad Faiz
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