Tag Archives: fair dealing

A quick word about an exceptional exception (you should get to know or start to consider using)

As part of the fair use and fair dealing week, IFLA is delighted to welcome Eric Chin, from the General Counsel at the National Library Board of Singapore, to share his views on the importance of making the best use of the flexibilities provided by the fair use and fair dealing provisions.


  1. Your mission as a librarian is to enable teaching, learning and research.  How much you can achieve depends on the extent to which libraries can collect, preserve, give access, present and exhibit library materials.  This in turn depends a lot on copyright laws that govern how library materials can be used.


  1. For example,  one of the exclusive rights of a copyright owner is the right to make a copy.  This impacts your day to day work ranging from the request by a teacher to make a copy of a photograph for a lesson, to whether the much used book that is deteriorating and is out of print (but still in copyright) can be digitised to preserve the content from being totally lost, to whether a video in an obsolete format (but still in copyright) can be migrated to a new digital format;  and to whether the non-profit museum down the road can make a copy of part of a map for an exhibition.


  1. Before we go further, it must be said that there is nothing wrong about the principle that copyright owners have exclusive rights for a period of time as just reward for endeavours and ability and it is beneficial to society because, among other things, it does create incentives for the production of more library materials.  It is not often said but it is not unfair to say that copyright is partly the lifeblood of a librarian’s job!  The question is about how this is balanced against what rights or exceptions there are to also ensure that exclusive rights do not act as unintended and undue barriers to progress in science, in the preservation of heritage and culture and the dissemination of knowledge.


  1. So copyright laws typically include a set of provisions that act as exceptions that will  allow for your mission as a librarian.  I say “typically” because copyright law is territorial in nature and each country has its own set of copyright laws. This means the scope of exceptions can vary (very) widely from country to country.  To see where you stand in the wide spectrum of copyright laws, it is useful to look at this study covering 191 countries: https://www.wipo.int/edocs/mdocs/copyright/en/sccr_35/sccr_35_6.pdf (the Study on Exceptions).


  1. Starting by knowing where you stand allows you to consider if you need to advocate for copyright exceptions that fellow librarians in other parts of the world can already use but you simply cannot.  What you cannot do will have a negative impact on the amount of teaching, learning and research that can be done in your own country. In an ideal world for librarians,  all countries will learn from one another and all will level up until all countries share the most useful exceptions in common. However,  it must sometimes start with ground up advocacy to the right powers that be in our countries, which is partly in our own hands.


  1. Looking at the range of exceptions in each country in the Study on Exceptions, you will see a fair few countries that do not list what is called “fair dealing” or “fair use” (collectively Fair Use) among the exceptions. Fair Use is a general exception that anyone can use and is not a specific exception available only to libraries but libraries can benefit greatly from it.  Each country will of course have an argument to make for its own copyright traditions and doctrine that their society may be comfortable with, but in my own view,  countries that do not have this exception may be missing out on an exceptional exception.


  1. Most library specific exceptions are generally prescriptive in nature with fixed criteria that must be met in an unchanging way in order to become applicable and this oftentimes can make it challenging for us especially in the fast changing digital era. On the other hand,  Fair Use is special because it is normally stated in a flexible way.  Certain broad factors (that are also usually not exhaustive) are set out as matters to be considered in a fair use analysis such as whether there is transformative use (i.e. use of the original library material or part of it in a beneficial way to society that is different from the intended use of the original) and whether the amount of the original library material used is appropriate in the circumstances including bearing in mind whether it would unfairly eat into or destroy the livelihood of the owner of the copyright.  Those who have had the benefit of using Fair Use will know that these broad factors for fair use analysis are such that the law in Fair Use can automatically adjust to new, evolving and challenging situations that you will face in your daily work.


  1. Around the world, in countries that have the Fair Use exception, it has been crucial in allowing for the use of library materials (including copying to an appropriate extent only) for research or study, criticism or review, reporting of news, to support teaching and learning,  to publicise library programmes, to create exhibitions, to preserve at risk items, to enabling use for those who are disabled and to making a record of ephemeral but culturally significant matters posted on the internet.


  1. This short piece cannot hope to set out all the details of what the best practices and exemplars are for Fair Use that gets the balance right between your mission and the rights of creators and publishers,  but urges you, as a librarian, to see where you stand in the spectrum of copyright laws that may be available across the world to support your mission.  As it is Fair Use Week,  and if you are one of those that does not have the benefit of Fair Use or actually do have the benefit of such an exception but have not used it,  go find out about it through the lawyer or other experts supporting your library and see how it can be fairly used.  If you then think it is useful, consider how you can advocate for it to be introduced or used as part of your workplan in the not too distant future.


  1. In the meantime,  it is Fair Use week and time to use those research skills to discover and read more about an exceptional exception that is not a fair weathered friend to librarians!


Eric Chin

General Counsel (and would be librarian and archivist)

National Library Board, Singapore


Note:  The views set out here are personal and do not represent the official view of any organisation I am associated with.


How HathiTrust Emergency Temporary Access Service (ETAS) supports Libraries in pandemic times

By Sara R. Benson, Copyright Librarian, University of Illinois at Urbana Champaign. Check out Sara’s podcast titled Copyright Chat at https://go.illinois.edu/copyrightchat

It’s Fair Use/Fair Dealing week and that means it is once again time to let folks know about exciting developments with the HathiTrust Digital Library. Last year on Fair Use Week I highlighted the ability of researchers to engage with copyright protected materials for text and data mining through the HathiTrust Research Data Capsule. This year, I would like to make readers aware of the HathiTrust Emergency Temporary Access Service or ETAS.

What is the ETAS? It is a portal allowing affiliated libraries to permit their patrons to access in copyright works remotely. Why is the ETAS available? COVID 19 has caused many libraries, such as my own (the University of Illinois at Urbana Champaign Library) to temporarily limit physical access to library materials. Almost half of our collection, however, has been digitized and is available in the HathiTrust corpus. Normally, users can only perform searches for how many times a given term appears in copyright protected works in the HathiTrust corpus. However, due to COVID 19, the ETAS allows users to view (but not download) entire copyright protected works remotely. Libraries participating must have the physical book in their collection and agree not to lend out the physical book. Thus, the book is being lent remotely on a one-to-one ratio to the Library’s physical collection on the basis of fair use. This type of lending is made possible because it is non-commercial, educational in purpose and justified due to the emergency nature of the pandemic virus. As noted by April Hathcock in a public statement created by copyright specialists and available at https://tinyurl.com/tvnty3a, “fair use is made for just these kinds of contingencies.”

So, as you celebrate Fair Use/Fair Dealing week this year, note that the pandemic has brought with it many challenges, but Fair Use has enabled libraries to keep lending their works digitally so that researchers and the public can continue to create, thrive, and produce . . . even during a crisis.

Celebrating flexibilities provided by fair-use and fair-dealing

This week is Fair use and Fair dealing week, organised by the Association of Research Libraries! It is a week to celebrate these doctrines implemented in many countries all around the world and the copyright provisions that allow libraries to benefit from flexibility to continue their missions.

Although libraries have similar missions around the world, trying to serve the best interests of users, they operate under very different laws.

As libraries have seen their doors closed and physical services interrupted or adapted due to the COVID-19 pandemic, the qualities and flaws of the varying legal provisions of each country concerning access to and use of content have been thrown into relief. The results are concrete: disparities result in significant divisions between the capacities of access to library resources by citizens around the world.

These varied laws reveal areas for improvement which in the midst of a global pandemic are only becoming more glaring.

Why and how have fair-use and fair-dealing been able and continue to support the needs of libraries during the pandemic? 

While many countries are subject to very detailed, prescriptive rules, tied to specific interpretations and technological supports, and even sometimes forgetting the spirit of the initial law, fair use and fair dealing have undoubtedly enabled libraries to obtain greater flexibility, thereby supporting the delivery of their missions.

To determine what is fair use, there are typically several criteria which are explored. These include the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market. These criteria are applied with reference to the objectives of the uses and not by the materiality of the medium on which the contents will be delivered, avoiding limiting library uses to specific formats of works.

Libraries that operate in countries with fair use and fair dealing benefit from an important advantage – the ability to continue their missions online to a greater extent, in order to meet the needs and expectations of users.

This is because fair use and fair dealing offer a more flexible framework, allowing for the taking into account of societal technological evolutions and therefore, consequently, the evolution of library practices. When a copyright law uses the term “analogous” in its legal vocabulary, this provision will, if not already, become obsolete as we move to other forms of media.

Fair use and fair dealing, an international doctrine

When we talk about fair use and fair dealing, it can seem that this is a doctrine whose scope is only applicable to North America. Certainly, opponents of more flexible laws try to claim that they can’t work elsewhere.

However, the reality of copyright implementations is much more complex than this, demonstrating the possibilities and compatibilities of fair use and fair dealing under current global regulations.

For example, other countries such as Israel, Malaysia, Singapore and South Korea have fair use provisions.

In 2007, the Israeli government updated its copyright regulations to include a fair use exception. It did this by creating an open-ended list of permitted purposes of use, with fairness being determined using a set of four factors similar to the US criteria for determining whether the use is fair.

In 2012, South Korea decided to add a fair use exception to its copyright regulations. Once again, the four determining factors are included as in the US. The same applies to Malaysia (2012) and Singapore (2004).

As far as fair dealing is concerned, in addition to the countries traditionally identified as fair dealing countries such as Canada, Australia and the United Kingdom, there are many other countries that still use these principles today. A list of 40 countries using fair dealing provisions has been compiled, including India, Antigua and Barbuda, Bangladesh, Barbados, Canada, Cyprus, Gambia, Namibia, Nigeria, Saint Lucia, Guyana, Jamaica, Vanuatu, Sierra Leone and Zimbabwe.

The fact that legal provisions on fair-dealing are implemented on all continents, in industrialized countries and countries in transition, is of considerable importance in demonstrating that there is no reason to limit these doctrines geographically. Moreover, given how long-established they are, without challenge, they are arguably also compatible with trade agreements and international copyright law.

We look forward to sharing further posts this week both about the benefits of fair use and fair dealing, and the practical implications for libraries.


7 out of 10: the ARIPO Model Copyright Law

The African Regional Intellectual Property Organisation (ARIPO) has released its model copyright law.

ARIPO it aims to support the work of intellectual property (IP) teams across Africa, through both country-specific capacity building, and regional-level reports and guidance.

Its 19 Member States come primarily from English-speaking Africa (with some exceptions), and will now doubtless be encouraged to refer to the Model Law in reflecting on their own reforms.

This means that the document has a potentially powerful impact. As such, it is worth being clear about its strengths, weaknesses, and silences, from a library point of view. Library associations and others advocating for better laws for libraries should be aware of where the Model Law will, or will not help.

This blog therefore explores the positives, the negatives, and the holes in the Model Law. All references to Articles are to the Model Law, unless stated otherwise).


The Good

Fair Dealing: in the first Article of the chapter on exceptions and limitations (Article 18), the Model Law suggests that uses which constitute fair dealing, for the purposes of scientific research, private use, criticism or review, or the reporting of current events should be permissible (Article 18(1)). It then offers a set of criteria for judging the fairness of this dealing – the purpose and character of the use, the nature of the protected work (how original is it?), the amount of the work used, and the effect of the use on the market (Article 18(3)).

This is a positive step, giving valuable flexibility to libraries and other users in making reasonable uses of works. However, it if course remains less open than fair use exceptions, which do not have closed list of accepted purposes. If the list was to be made open (for example by adding a ‘such as’ before the list of purposes), it would offer an even better model.

Inclusion of Unpublished Works: too often, copyright exceptions only apply to works which have been formally published. This can make the work of libraries and archives in dealing with unpublished works more complicated. The Model Law underlines that the fact of being unpublished does not prevent uses under fair dealing (Article 18(4)).

A Digitally-Reading Education Exception: the Model Law makes it clear that it is possible to make uses of copyrighted works for education purposes via electronic networks, and not just in analogue form (Article 21(1)(a) and 21(1)(b)).

Interestingly, the only area where the exception can be cancelled out by a licence is for in-person teaching (Article 21(1)(c)(iii)). This is clearly not ideal, given that the Article is, anyway, covered by the rule that uses under exceptions should not conflict with the normal market exploitation of a work.

A Technologically Neutral Definition of Copying: too often, national laws suggest that copies can only be made through a specific technology, such as photocopying. The Model Law has the merit of underlining that it is possible to make reproductions through any format (Article 2).

Protection of the Public Domain: the Model Law includes standard provisions on facts, data, news and political speeches not being protected by copyright, but is clear that this also applies to laws, court judgements and other administrative texts are also in the public (Article 6). Furthermore, there is an explicit definition of the public domain, which allows the possibility for authors to renounce their rights. This is positive, given the tendency in some countries to create unwaivable rights which undermine initiatives such as Creative Commons (Article 35).

No Term Extension: the Model Law does not take the opportunity too often used elsewhere (and in spite of the evidence) to go beyond protection lasting for the lifetime of the author plus fifty years. This is a useful model to use elsewhere.

Inclusion of Museums: the provisions on library copying also apply to archives and museums. This is a positive, given the challenges identified in WIPO work around museums facing different conditions and rules to other heritage institutions.


The Bad

Overall, the Model Law provides a relatively good example for governments. However, there are some weaknesses which libraries should look to avoid replicating in their own national legislation. The below suggestions are in addition to the encouragement to adopt fair use above.

Vague Provisions on Circumventing Technological Protection Measures: in line with the WIPO Copyright Treaty, the Model Law underlines that ‘effective’ technological protection measures should themselves be protected by law. In other countries, there then follows a guarantee that users should be still be allowed to carry out permitted acts (i.e. under exceptions). However, the ARIPO Model Law only provides that governments may make exceptions. This is far too weak at a time that libraries are acquiring a growing share of collections in digital form (Article 40(4) ad 45(3)).

No Lending Exception: the Model Law includes public lending as one of the uses over which a rightholder should have exclusive rights. This is not something required by the Berne Convention itself (which only covers rental). This risks obliging libraries to make payments or seek authorisation for lending (over and above what they have paid to acquire books in the first place). This risks seriously damaging libraries’ ability to promote literacy and a love of books (Article 7(1)(k).

Restrictions on Preservation Copying: while the Model Law does (commendably) not limit the technology used to make copies, the fact that it only talks about ‘a’ copy poses to digitisation efforts (Article 23(3)). In line with recent EU reforms, it would be better to talk about taking copies in the quantity necessary to achieve the goal.

Furthermore, the Model Law also includes the obligation to see if a commercially available copy is available before taking such a copy. This risks introducing an unhelpful administrative burden, and may not be practicable. Given that it is usually cheaper to buy a copy than digitise and preserve, it would be better to leave the choice between copying and buying to libraries, rather than enforcing it through law (also Article 23(3)).

Imposing Commercial Availability Checks for Marrakesh Copying: The Marrakesh Treaty made an important breakthrough by removing copyright-related barriers to making and sharing accessible format copies of books for people with print disabilities. It did however leave the possibility for Member States to impose restrictions though, in the form of an optional remuneration requirement, or the obligation to check if an accessible format copy is not already available on the market before making or sharing one (Marrakesh Treaty, Articles 4(4) and 4(5)).

Libraries have argued strongly against making use of either of these possibilities, given the financial and administrative cost. However, the Model Law does suggest that there should be a check on commercial availability. Given the lack of information about which books are available where, and in what formats, such a requirement risks only leading to uncertainty.

Lack of Provisions on Collective Management: the Model Law is surprisingly thin on guidance about the regulation of collective management organisations (Article 57), while at the same time including provisions on extended collective licencing (Article 38). While it is clear that well-managed collecting societies can facilitate the work of libraries when carrying out uses that fall outside of exceptions, it is essential that these are run in a transparent and accountable way in order to be legitimate.

The Model Law says very little about the need for CMOs to be independent of government (in order to avoid conflicts of interest in the operation of copyright offices), to publish information about how much they are collecting and paying out, or to be representative of rightholders and rights when offering licences. At a time when multiple governments are needing to act to force better governance in this field, the vagueness of the Model Law is troubling.

Over-Application of the Three-Step Text: The Berne Convention only applies the three-step test (that a use needs to be a certain specific case, not conflict with the normal market exploitation of a work, and not unreasonably prejudice the legitimate rights of rightholders) only to exceptions to the reproduction right (Article 9(2), Berne Convention). However, the Model Law applies this to all exceptions, leading to potentially unhelpful debates about what is and is not possible (Article 18(2))

Attribution Obligations: on various occasions (Articles 18(1), 21(2), 22, 23(2), 24(1), 26(3)), the Model Law suggests that use can only be made under exceptions if there is attribution. However, this may not always be possible. Laws elsewhere recognise this possibility to make uses without attribution when this is not practicable. However, the Model Law does not, creating uncertainty for users who do not know the author of the work they are using.

Licence Override for Document Supply: as mentioned above, the exception allowing for educational uses of works in face-to-face teaching can be disapplied when a licence is available. This also applies to situations when libraries are making copies for the private use of users. Where a collective management organisation argues that it can offer licences, this could do a lot of damage to document supply activities (Article 23(2)(a)(iii).

Block on Parallel Importation: in the context of WIPO, libraries have argued that even when there is a domestic rightholder with the right to distribute a work nationally, it should be possible for libraries to make acquisitions across borders. This can be essential in order to meet requests for specific versions of works, or, for example, when the domestic rightholder is not active. The Model Law gives the rightholder the exclusive right to import works, without exceptions (Article 7(1)(j)).

Limits on Caricature, Pastiche and Parody: the Model Law does include welcome exceptions to economic rights (such as reproduction) for review and critic. However, the exception for caricature, pastiche and parody (Article 30) only applies to moral rights, and not to economic rights. As such, it may make it possible to restrict such activities on other grounds.


The Missing

The Model Law, while comprehensive, does not cover a number of areas which, from a library point of view, would be desirable in any national copyright law.

Orphan and Out-of-Commerce Works: libraries hold many works which are no longer commercially available, but are still in copyright. As such, there are significant restrictions on how far they can give access. This is particularly difficult when a work is orphaned (i.e. it isn’t possible to identify or local rightholders). More and more countries are introducing provisions allowing libraries to permit use of such works, subject to various conditions. The Model Law does not even reference these issues.

Text and Data Mining: legal uncertainty about the possibility for libraries to allow for text and data mining of works in their collections has lead a number of countries to introduce explicit exceptions. There is nothing about this in the ARIPO Model Law, meaning that there is continued uncertainty.

Limited Exceptions for People with Disabilities: while the Model Law does copy provisions from the Marrakesh Treaty for people with print disabilities, it does not take the opportunity (foreseen in the Marrakesh Treaty) to apply similar rules for people with other disabilities (such as sub-titling for people experiencing deafness). Many countries do allow copying without restrictions on the type of disability – it is a shame that this possibility has not been included in the Model Law.

Contract Override: the Model Law is silent on the issue of contract override – i.e. the possibility for exceptions and limitations to be cancelled out by the terms of a licence. In a growing number of countries, there are conscious steps to prevent this from happening, and so defend user rights. National governments should introduce broad provisions ensuring the pre-emption of any contract terms which do undermine exceptions.

Cross-Border: the Model Law only refers to cross-border uses in the case of the provisions on sharing accessible format copies of works for people with print disabilities. There is nothing anywhere else which would allow for the cross-border application of exceptions.

This is perhaps an unfair criticism of course – it is only through international law making that there can be legal certainty for cross-border uses. ARIPO itself could act, but the most effective solution would need to come from WIPO itself. IFLA of course continues to engage to achieve this.



Overall, the ARIPO Model Law does cover a number of key points which help libraries do their job, in particular relatively flexible fair dealing provisions. However, there remain a number of flaws, both specifically (lending rights, limitations on preservation), and cross-cutting ones (contract override).

Governments should therefore not look to adopt the Model Law wholesale, but rather work with their library associations to ensure that they have rules that truly support the public interest missions of libraries. Overall, the Model Laws gets a 7 out of 10.

Canadian Flu? The Doctor will See You Now

Canadian Flu ImageDebates around fair use and fair dealing are often fierce. For some, they mark a step away from old certainties and bring new and unwanted risks. For others, they are a means of reducing the rigidity of strict, code-based legal systems that risk harming libraries’ ability to serve their users.

In the middle of this abstract debate, the case of Canada’s 2012 copyright reforms is frequently cited as a case study. In debates in Australia and South Africa, for example, there are references to ‘Canadian Flu’ – the idea that extending fair dealing to education has been disastrous. Of course it is worth noting that it was arguably a series of decisions by the Canadian Supreme Court that effected the change, and that the government merely confirmed this state of affairs.

Nonetheless, given that this is being presented as evidence in debates around the world, it’s worth a fuller exploration of the symptoms. What is actually going on, and what diagnosis can we make?


Doctor, Doctor! The Symptoms

The most obvious event in the last few years has been the significant fall in the revenues collected by Access Copyright, Canada’s collecting society for reprographic (photocopying) rights. This has, logically, led to a fall in the revenues paid out to authors and publishers through this particular channel.

It is also true that a number of companies have gone out of business, or international companies have reduced their Canadian operations. Nelson, a major Canadian publishing company, declared a form of bankruptcy, and Oxford University Press closed its division providing materials for schools.

At the same time, a proper diagnosis is not possible without looking at everything that is going on. A crucial point is the growth in sales of electronic content, and that these materials appear to be replacing the sorts of course-packs that formed a key part of Access Copyright’s revenues. In the university sector, library spending on publisher content has grown systematically since 2012. The share of digital vs physical has reversed between 2002/3 and 2015/6.

This has impacted the textbook market (including the market for taking copies of textbooks), alongside falling numbers of young people, greater use of individual books, and textbooks themselves lasting longer. Licences offered for whole eBooks are often indeed cheaper than licences for individual chapters.

Meanwhile, Canadian education is doing well, coming close to the top of the table in the OECD’s PISA study, while its publishing industry as a whole is growing at twice the speed of the United States. As for the educational sector, it is the cost of books compared to budgets that is cited as a reason for not using more Canadian content.


On the Couch: a Diagnosis

While the core observations – the reduced revenues of Access Copyright and the closure of some companies – are obviously true, some of the surrounding arguments are more dubious.

The idea that the reform has put companies out of business is undermined by the fact that Oxford University Press’s Annual Report for 2013-14, which notes the closure of its schools division, places the blame on a longer-term decline in the market that is cited as a reason (falls of 50%). Meanwhile, the company celebrates its continued investment in Higher Education and English language programmes. Nelson’s demise seems to be a delayed consequence of taking on too much debt in the years before the financial crisis.

The notion that there have been 600 million pages being copied without payment seems to be based on highly questionable assumptions, with many of the supposed copies actually having been paid for, and the 2005-06 baseline unlikely to be relevant. And as has been highlighted in submissions to the Canadian parliament, the impact of falling revenues from Access Copyright has affected revenues by as little as 1%.

Overall, if the patient is the publishing industry as a whole, it appears to be healthy, although of course there can be claims that it would be healthier still otherwise. Indeed, figures for 2014-16 for example show Canadian-owned publishers increasing sales while foreign-owned ones saw a fall.

But arguably, the most important patient is not the publishing industry, but Canadian education as a whole. Quality publishing does play an important role in this, and certainly schools and universities would be poorer without it. At the same time, it is vital to take account of the interests of students and educators, who have reported that the reforms have allowed them to teach – and learn – much more simply.



As highlighted at the beginning, the move to fair dealing for education in Canada, both through the actions of the Canadian Supreme Court and the government, has arguably had a very concentrated impact on one player – Access Copyright. This has had knock-on effects on publishers who, nonetheless, seem in many cases to have benefited from growing revenues from other sources.

Moreover, once a wider perspective is taken, and all symptoms and trends are taken into account – in particular the impact on learning – the Canadian patient is arguably in good health.

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.