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Fair dealing

Fair dealing is a doctrine of limitations and exceptions to copyright which is found in many of the common law jurisdictions of the Commonwealth of Nations (the former British Empire).
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Fair dealing is an enumerated set of possible defenses against an action for infringement of an exclusive right of copyright. Unlike the related United States doctrine of fair use, fair dealing cannot apply to any act which does not fall within one of these categories. In practice, common law courts might rule that actions with a commercial character, which might be naively assumed to fall into one of these categories, were in fact infringements of copyright as fair dealing is not as flexible concept as the American concept of fair use.

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Fair dealing in Australia

In Australia, the grounds for fair dealing are:

  • Research and study
  • Review and criticism
  • "Reporting the news"
  • Legal advice (although the Crown is deemed to own copyright in federal statutes, and each State in state statutes).

Australia has a deeming provision[?] which guarantees that fair dealing applies if you photocopy either (not more than one chapter), or (less than 10%) of a book or journal (this was a result of a successful lawsuit brought against a university library for "authorisation" of patrons' copyright infringement).

Regarding fair dealing under Crown copyright the Australian Copyright Act 1968, ss.176-178. Section 182A (inserted by Act 154 of 1980, s.23) provides that the copyright, including any prerogative right or privilege of the Crown in the nature of copyright, in Acts, Ordinances, regulations etc., and judgments of Federal or State courts and certain other tribunals, is not infringed by the making, by reprographic reproduction, of one copy of the whole or part of that work for a particular purpose (this does not apply where charge for copy exceeds cost).

Fair dealing in Canada

The Canadian concept of fair dealing is similar to that in the UK and Australia. The fair dealing clauses of the Canadian Copyright Act allow users to make single copies of portions works for "research and private study."

While there is some case law interpreting the statutary provisions of the Canadian Copyright law on the topic of fair dealing it is not clear what may or may not be considered fair dealing, and some commercial uses may be considered fair dealing under Canadian law.

The Association of Universities and Colleges of Canada (AUCC), a well established lobbying group representing the educational sector in Canada is of the opinion that making a copy of the following for the purposes of private study and research is fair dealing:

  • a periodical article of a scientific, technical or scholarly nature from a book or a periodical issue containing other works;
  • a newspaper article or entry from an encyclopedia, annotateded bibliography or similar reference work; or
  • a short story, play, poem, or essay from a book or periodical containing other works.

The AUCC believes that faculty members or students can make a copy of parts of a book or other complete works under fair dealing. No hard or fast rules are available in Canadian law but a rough indicator would be 10% of a complete work. The AUCC also maintains that fair dealing applies not just to photocopying but also to other methods of reproduction -- including the making of copies onto slides, microfiche or transparencies. For multiple copies and for copying in excess of the extent mentioned above, AUCC recommends acquiring licences from Access © , the Canadian Copyright Licensing Agency, one of the the copyight licensing societies or copyright collectives in Canada.

Fair dealing in the United Kingdom In the United Kingdom, "fair dealing" has always been the subject of dispute because the law never defines clearly the exact number of copies and the amount of the original materials allowed.

Under the Copyright, Design and Patents Act (1988) (CDPA), fair dealing is defined as "private study and criticism and review and news reporting" (s. 29, 30) Although not actually defined as a fair dealing, copyright in works is not infringed by incidental inclusion in an artistic work, sound recording, film, broadcast or cable program.

CDPA permits individuals to make a single copy of a "reasonable proportion" of literary, dramatic, musical and artistic works for "research and private study" and "criticism, review and news reporting" ( s. 29, 30) under the terms of "fair dealing". The extent of "reasonable proportion" is not defined in the act.

Some higher education institutions in the UK interpret "reasonable proportion" as:

  • One article in a single issue of a periodical or set of conference proceedings.
  • An extract from a book amounting to 5% of the whole or a complete chapter.
  • A whole poem or short story from a collection, provided the item is not more than 10 pages.
  • In general, copying of sheet music is not allowed.
  • Making more than one copy is also not allowed.

For copying beyond the boundaries set forth by these guidelines, universities and schools in the UK obtain licences from the UK Copyright Licencing Agency (CLA) for their staff and students a local copyright collective. Under these licences, multiple copies of portions of copyrighted works can be made for educational purposes.

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