Monthly Archives: February 2019

Where Fair Use and Fair Dealing is Being Fought For

A Global Movement: Where are librarians calling for fair flexibilities to serve users better?

This week is Fair Use/Fair Dealing Week. It’s an opportunity to look at where librarians around the world are involved in efforts to defend and promote Fair Use and Fair Dealing.

They are doing this because copyright rules that give librarians the space to adapt and update their practice make it easier to fulfill libraries’ mission to preserve and give access to information.

Therefore, while IFLA is directly involved in calling for reform at the global level, we also engage with our members at national level to promote positive legislative change. The goal – to promote exceptions and limitations that give libraries flexibility, but at the same time do not cause unreasonable harm to rightholders.

Fair use and fair dealing are a great example of provisions that bring this needed flexibility to copyright law. Here’s some places where they are or have been under discussion recently:


In 2012, a copyright reform expanded the Canadian fair dealing provision to also apply to educational purposes.

Coming in the middle of a trend towards greater use of digital materials, and falling photocopying volumes, this has been blamed for the difficulties faced by some publishers. The decision of some to stop paying fees for photocopying has certainly led to a fall in income for the relevant collecting society, although the jury is out on the overall impact on rightholders. Indeed, university libraries themselves are paying more and more for content, which is increasingly digital.

It is therefore unlikely that the fair dealing reform is to blame for a net drop of revenues in the publishing sector, or that flexibilities in copyright per se should be understood as a threat. An ongoing review of the 2012 reform will hopefully shed more light on the issue, and underline rather the positives for Canada’s education sector.

South Africa

South Africa’s copyright reform is close to an end, and if adopted as it currently stands, will represent a significant improvement for the library sector.

While South Africa has had fair dealing for many years, the copyright reform looks to introduce a full fair use exception. This consists on a non-exhaustive list of uses (research, criticism, reporting current events, teaching, comment, parody, preservation, etc.) for which uses can be deemed fair, as part of a four-factor test that is close to the US model.

While there are many other relevant provisions in the Bill, there has been a lot of controversy over this proposal, including extensive mischaracterisation of what it would mean. The library sector has repeatedly had to bring arguments to the table to rebut myths about fair dealing.


The Australian government is going through a period of copyright reform, and welcomed submissions in 2018. The country currently has fair dealing, with a closed list of activities where activities can be considered fair. Librarians have advocated for a change to fair use, or at least a longer list of permissible activities, including text and data mining, library archive and use, and certain educational uses. At the same time, the publishing sector argues that fair use would be undesirable. The Australian Productivity Commission, which carries out economic assessments of the benefits and costs of reforms, has spoken strongly in favour of fair use as an approach.

New Zealand

The New Zealand government announced a copyright review in 2018. As in Australia, New Zealand currently has a fair dealing provisions and specific exceptions, limited to the purposes of criticism, news reporting and research.

It is likely that there will be controversy around the fair dealing provisions, including resistance from established rightholders to making copyright flexible at all, and encouragement from groups representing users to expand it or turn it into a fair use provision with no prescribed activities. The call for comments is still open, and we wait to see what will come of this.


Singapore is a currently fair dealing country, although it already allows a wide variety of purposes to be classed as ‘fair’. Nonetheless, change is on the way, following a consultation two years ago, and a recent set of proposals for further form, including a shift to full fair use. The proposals also contain some very positive library provisions, with exceptions that would make it possible for our institutions to continue providing a public interest service, now in the digital age.

Here too, there is likely to be opposition to the idea of more flexible copyright. Draft legislation is expected later in 2019, with further possibilities for comment.

United Kingdom

The United Kingdom has been influential as the origin of the fair dealing doctrine and has continued to innovate in recent years. In 2013, for example, it made it clear that text and data mining could fall under a research exception, and ensured that copyright exceptions and limitations are protected from contract override.

With Brexit underway, the UK Intellectual Property Office is looking at adjusting the copyright framework to the political changes. For that purpose, and among other things, a consultation is underway, currently with an open call for evidence.

The consultation focuses on three topics: the archive exception; other copyright exceptions, including research and private study, text and data mining (TDM), education, quotation, and parody, caricature and pastiche; and, extended collective licensing and orphan works. For now, at least, fair use does not seem to be on the table, although if there is a break away from EU law, there could be possibilities to promote it.

As the Crews report shows, there’s several other countries where either fair use or fair dealing exists, for instance Israel, Republic of Korea, Sri Lanka, the United States, Bangladesh[1], the Philippines or the Republic of Korea. IFLA continues to monitor legislation here, and elsewhere, in order to give libraries the best possible legal framework for achieving their missions.

For more detail in these and other copyright reforms, check our copyright database and feel free to add comments for any updates you have.

[1] The fair use of certain works for private study or private use including research is not an infringement

Fair’s Fair: How Fair Use and Fair Dealing Provide a Balanced Approach

Fair's Fair: How to find the balance between protections for creators and practicality for users?

In those countries where the introduction or extension of fair use or fair dealing is on the agenda, there is often a claim that this will lead to the end of payments for use of works. In South Africa, for example, those opposing the proposed reforms have implied that fair use will allow universities to copy any textbook, in its entirety, a large number of times, without compensating the author or publisher.

This is simply wrong.

Nonetheless, it is true that much advocacy in favour of fair use or fair dealing does focus on how these will enable libraries to make new uses of works without needing to seek and obtain permission.

Therefore, to provide clarity about the reality of fair use and fair dealing, and to show that it is certainly not the free-for-all that some like to suggest, this blog explores examples of where courts have tested the principle, and found uses (or dealings) not to be fair. It does not, of course, offer a judgement on the merits of the decisions taken, but underlines that limits do exist.


Purpose: Not Everything Goes

A key element in deciding whether use or dealing is fair is the purpose of the use. While fair dealing implies a much more restrictive approach to this question – for example, it’s only permissible to use works for activities such as research, private study, education, criticism or satire – this is also the first ‘factor’ to consider in taking fair use decisions.

Making copies for a commercial purpose, especially when there are no major changes to the work, tends to count against fairness. A number of US judgements (Princeton Univ. Press v. Mich. Document Servs., Inc., Basic Books, Inc. v. Kinko’s Graphics Corp., Blackwell Publ’g, Inc. v. Excel Research Grp.) all underline that even if the goal is to support education, if the copying is carried out on a commercial basis, this can count against fair use. In Basic Books in particular, the judges noted that there was no compelling educational reason to copy without making payment, for example.

Similarly in New Zealand, Television New Zealand vs Newsmonitor also highlighted that commercial uses or works, without major changes tend to lead to a decision against fair dealing. There is a similar conclusion in De Garis and Moore v Neville Jeffress Pidler Ld, an Australian case where a newspaper publisher had copied and distributed articles by journalists without seeking permission or making payment.

In fair dealing jurisdictions in particular, it is important to be able to show that the purpose is one of those covered by legislation. For example in Australia, in University of New South Wales vs Moorhouse, the judge underlined that there was no guarantee that the copying was carried out for educational purposes. In Canadian Copyright Licensing Agency v. York University, the court gave attention to the question of whether copying without paying licences in fact benefitted the university in terms of student recruitment.

It’s not only a commercial purpose that can support a decision of a use not being fair. In the case of Toksvig vs Bruce Publishing, the copying of one person’s biography of Hans Christian Andersen merely in order to save time in preparing another helped lead to a judgement against fair use. Similarly, in Marcus v. Rowley, the extensive copying of a recipe book in part failed the purpose text because the defendant’s book was used for the same purpose as the original.


Amount: Not Having it All

The claim heard in South Africa that fair use would lead to the copying of entire textbooks dramatically ignores the importance of judging whether the amount of a work copied is fair. This is calculated not only in pure percentage terms, but also in terms of whether it includes the ‘heart’ of the work.

There are a number of US cases involving copying of exam test questions which have found that even the most minimal copying (of one question for example) represents a serious amount of a work (Ass’n of Am. Med. Colls. v. Mikaelian and Educ. Testing Serv. v. Katzman). Similarly in the Georgia State case, the judge in the 2016 opinion highlights that even copying as small a share as 3.24% of a book can count as excessive, especially when whole chapters are involved. Indeed, the case often seen as the origin of Fair Use, Folsom v. Marsh, involved a judgement against the fairness of copying 353 pages of one book to create another one.

Outside of the US, decisions on fairness also underline that the amount copied is a serious issue. Civic Chandran vs Ammini Amma in India paid specific attention to the length of extracts (although in this case found in favour of fairness). The negative judgement against York University underlined that setting a threshold did not offer a valid means of assessing fairness, compounded by the number of copies being made.

In Moorhouse, in Australia, the judge also stressed that the amounts being copied could well be too high to be fair. Meanwhile in the UK, Ashdown v Telegraph Group quotes Laddie, Prescott & Vitoria, The Modern Law of Copyright and Designs, in order to suggest that the copying of non-insignificant parts can count against fair use – in this case deciding that a newspaper’s use of a politician’s diaries was excessive.


Market Impact: Do Not Compete 

The impact of use or dealing on the market for the original is a crucial factor. Courts have regularly found that competing with the original can support a judgement against fairness. A recent example is in the Capitol Records LLC vs. ReDigi Inc. case, where a site allowing people to sell on digital music was seen as directly reducing sales for the (more expensive) originals. Indian law, for example, also underlines that impact on sales is a key factor to consider.

There are also various US examples where courts decided that extensive (and free) copying of works was unfair when buying an original or acquiring a licence would have been possible (Princeton Univ. Press v. Mich. Document Servs., Blackwell Publ’g, Inc. v. Excel Research Grp.). Decisions have also gone against companies which have encouraged research employees to take copies of works rather than paying for them (Am. Geophysical Union v. Texaco, Inc.).

The commercial impact does not need to be high for a negative finding on this factor. For example in Georgia State, even a potential loss of only $34 was seen as enough to justify finding against the university. Decisions have also gone against users even when they are non-commercial, such as in the case of Encyclopedia Brittanica Educ. Corp. v. Crooks, where the sharing of recordings of educational programming was nonetheless deemed to reduce the market for the original.

In some cases, a use may not compete, but it does harm the market for the original, for example by reducing its value. This has been a factor in cases involving publication of exam questions (Ass’n of Am. Med. Colls. v. Mikaelian and Educ. Testing Serv. v. Katzman). It has also applied when the publication of a PhD thesis on a library website effectively prevented a student from taking his work to another university to complete his research there (Diversey v. Schmidly). The same goes in the case of Ashdown v Telegraph Group in the UK, which found that publishing diaries would reduce the value of a politician’s memoirs in due course.

It is worth noting, of course, that courts have underlined that the fact of a work being commercially available in some form does not necessarily make use or dealing unfair. For example, buying a whole book when a student only needs one chapter may not be reasonable. Similarly, just because a licence exists, it doesn’t mean that any use without obtaining a licence is unfair, as set out in York University. However, if the alternatives are reasonable, or the user does not make an effort to identify them, then this may weigh against fairness.


Conclusion: Far from a Free-For-All

It is clear from the above that fair use and fair dealing are a long way from the licence to copy that is sometimes claimed. In the decisions noted above, courts have shown that they are serious about ensuring that fair means fair, and in doing so have created a jurisprudence that serves as a guidance for others.

Clearly, in addition to the laws themselves, there is also an obligation to take responsible precautions. Indeed, libraries are usually very careful in applying the law, with respect for intellectual property, a part of the IFLA Code of Ethics. Courts have been ready to decide against libraries where they judge that not enough care has been taken, for example in University of New South Wales vs Moorhouse in Australia. Yet the scarcity of cases targeting libraries implies a strong focus on respecting the rules.

Of course, there is also the accusation that fair use is merely the right to hire a lawyer. This would be to imply that there is no need to go to court under other systems, which is of course absurd. Instead, as the examples above underline, fair use and fair dealing have seen the emergence of a set of jurisprudence that offers rightholders effective protections, while at the same time allowing for a degree of flexibility that can reduce the need for new judgements and legislation every time technologies and uses change.


CORRECTION: Reference has been removed to Code Revision Comm.v. Public.Resource.Org, where on appeal, it was found that copying and making available of public legal information was fair.

The 10-Minute Library Advocate #6: Find Out Who’s In Charge

Find Out Who's in Charge

The end goal of advocacy is to affect decision-making.

You want to encourage those who have power – or resources – to support your library, library system, or libraries in general.

Of course advocacy itself is about preparing the ground – building understanding, changing attitudes, creating the motivation to act. But it is important to remember that there will always be certain people you need to influence, directly or indirectly.

But who are you targeting?

So for our sixth 10-Minute Library Advocate exercise, find out who is the one – or who are the ones – who are taking those key decisions, about your funding, the laws that affect you?

You should start just by focusing on one level of government.

At the local level, is there someone responsible for library issues? There may be both an official and someone who is elected for example.

At the regional or national level, you will need to think about which ministries, departments or agencies have a say in the way libraries are run, funded, or can serve users.

Write down your answers – you will need them for future exercises!

Good luck!

See the introduction and previous posts in our 10-Minute Library Advocate series and join the discussion in social media using the #EveryLibrarianAnAdvocate hashtag!

The 10-Minute Library Advocate #5: Think of Three Things Your Community Cares About

Think of 3 Things Your Community Cares AboutLibraries have always had a mission to respond to users’ needs.

But to win the support of your community, it’s important to make it clear that you care about the things that matter to them.

This is a lesson that politicians have long understood. People will vote for a candidate who claims to share their priorities, and promises to act on them.

Of course libraries are already acting! But the way you talk about your work, or present it in other ways such as posters, articles or on social media, can make a difference.

In order to understand how to do this most effectively, you need to have an idea of what counts.

So for our fifth 10 Minute Library Advocate exercise, think of three things your community cares about.

What are the issues that motivate them? What do they worry about? Think about what people talk about on the streets, what politicians say, what you hear in your own life and work.

And then write these down and use them as a reference in your other work, to ensure that your advocacy will really resonate with people.

Good luck!

See the introduction and previous posts in our 10-Minute Library Advocate series and join the discussion in social media using the #EveryLibrarianAnAdvocate hashtag!

The Good, The Bad and (Avoiding) the Ugly: A Way Forwards on the Copyright Directive

Discussions around the European Union’s draft Directive on copyright in the Digital Single Market are as tense as ever. Strong divisions have emerged between and among Member States and Members of the European Parliament around controversial proposals for a new press publishers’ right (Article 11) and an (effective) obligation on internet platforms to filter content (Article 13).

These disagreements stand in contrast to the consensus that has emerged around other provisions in the Directive, which will help libraries and cultural heritage institutions in their work to promote innovation, support education and enable preservation and access to heritage.

Such measures, in line with the EU’s own international obligations, cause no unreasonable prejudice to rightholders, and indeed will support creativity and discovery.

The fear must be that a failure to find agreement on Articles 11 and 13 will lead to calls for the rejection of the Directive as a whole. This would be a huge loss for innovation, education and heritage in Europe, and would be hard to explain to Europe’s voters, given the public support for such measures received from all sides of the debate so far.

This blog offers more detail on the situation so far, and sets out the case for avoiding this worst-case scenario.


The Good, The Bad and the Ugly. ACJ1, CC-BY-NC-SA Good – Achievements So Far

The draft Directive already contains a lot of good. Starting from a reasonably positive base in September 2016, discussions among MEPs and Member States have led to improvements in provisions around text and data mining, teaching, preservation, and out-of-commerce-works – Articles 3-9.

If these elements of the Directive pass, EU citizens will:

  • Be able to engage much more easily in text and data mining. This will provide a significant boost to research into Artificial Intelligence in particular, at a time when Europe risks being left behind other countries who have been far more ready to update their legislation.
  • Have more opportunities to learn using digital tools, including in libraries. This will further democratise education, and help ensure that everyone can continue to learn throughout life.
  • Continue to enjoy access to Europe’s cultural heritage into the future, thanks to changes that will give libraries and cultural heritage institutions the clear right to take digital copies of books and other materials for preservation purposes.
  • Gain new access to works which are in-copyright but out-of-commerce, and so otherwise can only be found within the walls of libraries.

This is a good result, in and of itself. It will offer important clarity to libraries and cultural heritage institutions and allow them to fulfil their missions in the digital age. It will break down one of the most significant barriers to realising the potential of text and data mining, a Commission priority since 2012.

Moreover, given the EU’s own international obligations under the Berne Convention, it will not cause any unreasonable prejudice to authors. Instead, today’s authors will benefit from wider discovery of their work, including the rediscovery of works which are no longer in print. The authors of tomorrow will find it easier to read, study and innovate.

This is not to mention other elements of the text on the table that will provide additional rights to authors, including the possibility to reclaim rights and to benefit from greater transparency about revenues made on the basis of their work.

These provisions have enjoyed a large degree of consensus, with agreement relatively early on in discussions between Parliament and Council. Stakeholders from all sides of the discussion have been ready to signal their support for these steps, or at least their readiness to accept them.


The Bad – Sticking Points

However, it has long been clear that not all of the Directive is consensual. The two most contentious elements – Articles 11 and 13 – look to create new rights or rules for situations which are arguably specific to individual markets, and indeed individual providers – the situation of newspapers faced with GoogleNews, and of record companies faced with YouTube.

As has been argued repeatedly, the proposals on the table – a new right over very short fragments of text from newspapers, and an obligation on all online platforms to filter content uploaded by users – are likely to make the problem worse.

Not only will they strengthen the hand of the existing dominant players (who are best placed to negotiate with content producers, introduce filters or make payments), but they risk causing major collateral damage, for example to educational and scientific repositories run by libraries.

It is therefore unsurprising that there is so much disagreement about these articles.

Most recently, and just days after the agreement of a new Treaty between the countries, France and Germany disagreed about whether smaller internet platforms should be excused from the obligation to filter all user content for potential copyright infringement.

Even though this particular dispute has been agreed, there are many more still open, underlining how flawed the approach to these articles currently is.

In short, while there is support for effective ways of sustaining high quality journalism and curtailing illicit uses, the proposals on the table are not the answer.


The Ugly – The Nuclear Option

There are crucial meetings due in the coming days which aim to find a way forwards. Steps have been made to create some minor flexibilities in Articles 11 and 13, for example to reduce the burden on small platforms, as well as limited protections for the educational and scientific repositories that support open access and open educational resources.

Friends scene. Source:, there are already complaints from some who had previously supported Articles 11 and 13, who are unwilling to accept anything less than the highly flawed original proposals.

Most worryingly, these calls are accompanied by demands to reject the entire Directive.

This would be the worst of all worlds. All of the progress already made to date on Articles 3-9 would be at risk, despite already having been subject to consensus. The years of work that have gone into these would potentially be lost, and with it an opportunity to support clear public interest goals in Europe.

As an election approaches, it would be difficult to explain to voters why a flagship piece of legislation has been sunk, merely because there was disagreement on one part.

It is therefore time to reflect on the value of delaying those parts of the Directive which are clearly not yet mature, and proceeding with those that are. This would allow the European Union to chalk up a useful ‘win’.

Instead of rushed discussions now, a full and holistic discussion on how to achieve these goals, reviewing all relevant policy tools, is needed, and could be a useful job for the next Parliament.

The 10-Minute Library Advocate: #4 Learn Some Key Library Statistics

Learn Some Key Library StatisticsNumbers count.

When you are making the case for your library – or libraries in general – you need to be able to appeal both to the heart, and the head, of the person you’re talking to.

Being able to provide numbers also gives you greater credibility, and so makes your arguments more powerful.

Of course you should be smart about the statistics you use.

Clearly the best are measures of library impact. How many people found a job, improved their grades, or learnt a new skill thanks to the library?

But simpler ones can also be useful too – how many people visit libraries, how many borrow books.

So our fourth exercise for our 10 Minute Library Advocates is this: write down three powerful statistics about your library, or libraries in your region or country, and memorise them.

If you need help, you can look at what’s available on the Library Map of the World, and learn some of these.

Good luck!


See the introduction and previous posts in our 10-Minute Library Advocate series and join the discussion in social media using the #EveryLibrarianAnAdvocate hashtag!

The 10-Minute Library Advocate: #3 Check How Your Library Appears Online

Image - Check How Your Library Appears OnlineSuccessful advocacy starts with building positive perceptions.

As discussed last week, it is important to know what your users think about your library. The same goes for non-users, who may of course include politicians and other decision-makers.

One of the key things that shapes the way your library is perceived is its appearance online. It is increasingly normal for library users and others to look for information about you on the internet before visiting.

What they find there will shape their opinions, and may even make the difference between them visiting or not. In particular, wrong information – about opening times or other services – can create disappointment.

Clearly building a website or even a good social media profile takes more than just 10 minutes. But by looking for your library through a search engine, you can get an idea of what your users may be seeing.

So the third exercise for our 10 Minute Library Advocates is to search for your own libraries online, and note down which sites mention you and your services, and what they say.

You can contact sites which have out-of-date information about your opening times and services to correct them. You can also think about which sites should be mentioning you, but aren’t.

Good luck!


See the introduction and previous posts in our 10-Minute Library Advocate series and join the discussion in social media using the #EveryLibrarianAnAdvocate hashtag!