The Copyright Amendment Bill 2017 (The Bill) has proposed many changes to the Copyright Act (The Act). Some of the proposed amendments have been generally accepted whilst others have been very contentious, namely, the insertion of the fair use doctrine in the Bill, which has been met with much criticism. In this article, I will discuss the differences between fair dealing and fair use, in Part II, I will dive into the jurisprudence of fair use in the USA and determine whether or not we should adopt the fair use doctrine or continue using fair dealing.
The term fair dealing is not defined in the Act, but section 12 of the Act provides circumstances in which people can reproduce or copy work without permission from the owner. The section allows reproductions without permission for:
· Research or private study;
· Personal or private use;
· For criticism or review;
· Reporting current events (e.g. newspapers, magazines, etc.);
· Judicial proceedings or a report of judicial proceedings;
· Quotation; and
· By illustration for teaching purposes
The Bill replaces the fair dealing provision with fair use. The Bill does not define the term fair use but it gives us section 12A- 12D to determine what constitutes fair use.
Section 12A (a) stipulates that a work is not infringed if it is used for:
· Research, private study or personal use;
· Criticism or review;
· Reporting current events;
· Comment, illustrations, parody, satire, etc.;
· Preservation for archives, libraries;
· Scholarship, teaching and education; and
· Ensuring the proper performance of public administration.
For a work to constitute fair use, it needs to satisfy, amongst others, the four factors set out in Section 12A (b) of the Bill which are:
1. The nature of the work in question;
2. The amount and substantiality of the part of the work affected by the act in relation to the whole work (How much of the work was copied?);
3. The purpose and character of the work; and
4. The substitution effect of the act upon the potential market for the work affected (Was there any economic harm done by the infringing work?).
Section 12A (b) of the Bill is similar to article 107 of the US Copyright Act, save the sequencing of the 4 factors to determine fair use:
” Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
(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.”
Fair dealing and fair use are not the same, what fair dealing and fair use have in common is that both doctrines allow third-parties (in particular circumstances) to reproduce copyrighted work without getting permission from the owner. However fair dealing only permits the reproduction of copyrighted works for only a closed list of uses of copyrighted material without permission. Whilst fair use has an “open” list and is not as restrictive as fair dealing. Fair use tries to balance the rights of the copyright holder and the need for people to access and use the copyrighted material.
Fair dealing permits a third party to reproduce copyrighted work as much as is necessary only for their study, private use, research, etc. There is no threshold as to how much copying of a work can be done, it is dependent on the individual circumstances of the case. Fair dealing only applies for personal use, it does not permit multiple copies of a work without the permission of the copyright owner. On the other hand, fair use is determined qualitatively as well as quantitively using the four factors mentioned above.
