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.