5.5 Fair use or dealing

‘Fair dealing’ gives legal immunity to someone in the UK who makes unauthorised use of a copyrighted work, provided they have a good reason for doing so. ‘Fair use’ is the equivalent in the US, although it is not technically identical.

We have already come across ‘fair use’ in The Future of Ideas. In Chapter 7, page 105, Lessig explained that copyright owners' control of their work is constitutionally limited in the US: ‘While a poet or author has the right to control copies of his or her work, that right is limited by the rights of “fair use”. Regardless of the will of the owners of a copyright, others have a defense against copyright infringement if their use of the copyrighted work is within the bounds of “fair use”. Quoting a bit of a poem to demonstrate how it scans, or making a copy of a chapter of a novel for one's own critical use – these are paradigmatic examples of use that is “fair” even if the copyright owner forbids it.’

‘Fair use’ and ‘fair dealing’ are terms that are much used and abused in the copyright wars. They are rather complex concepts legally and are evaluated on a case-by-case basis, which makes them wide open to interpretation and spin.

There are no fixed rules on what proportion of a work can be used – for example, what percentage or how many words or paragraphs. You are not allowed to use a ‘substantial part’ of a copyrighted work but the law does not define exactly what this means. It has been interpreted by the UK and US courts to mean ‘a qualitatively significant part’ or ‘a qualitatively substantial part’ of a work, even if that is only a small part of the work.

Despite the fact that there are no fixed legal rules on how much can be used, publishers will sometimes have their own rules for how much a person can use before they need to ask the publisher's permission, e.g. no more than 150 words from a novel or 300 words from a text book. This does not mean that the publisher's interpretation will be accepted if a case should come to court.

Terry Carroll's frequently asked questions on copyright contains four pages of small dense type on fair use. And that just covers fair use in the US. It will be different in other jurisdictions. In the UK the Intellectual Property Office has a number of web pages explaining the exceptions to copyright, including fair dealing.

One of the most famous US Supreme Court cases, Sony v Universal City Studios, dealt with the legality of video cassette recorders. Effectively, the question was whether it was fair use for consumers to tape TV programmes. The court made a split decision, with five justices for and four against. The original District Court had ruled in favour of Sony. The Appeal Court overturned this decision. Then the Supreme Court narrowly overturned the Appeal Court ruling in favour of fair use and Sony.

If legal experts at the highest levels cannot agree on what constitutes fair use, ordinary people don't have much chance. To quote Terry Carroll, ‘If all this sounds like hopeless confusion, you're not too far off. Often, whether a use is a fair use is a very subjective conclusion.’

This unit does not require you to become an expert in the legal interpretation of fair use or fair dealing. We do expect you to be aware that they are complex legal concepts that are open to interpretation and spin. They do, therefore, get abused in the copyright wars; sometimes deliberately, sometimes through genuine misunderstanding. We also expect you to have an informed lay person's idea of what fair use/dealing are, e.g. part of the copyright ballpark that copyright owners do not control.

The minute you read something you can't understand you can be almost sure it was drawn up by a lawyer.

(Will Rogers)

Further reading: ‘Copyright as Cudgel’ is an article in the Chronicle of Higher Education written by someone who agrees with Lessig's perspective on the copyright wars. It includes, in the bullet points towards the end of the piece, an accessible description of fair use, which may help to reinforce your understanding of the points made above.

5.4 Tactics of persuasion

5.6 Activity 4