RE: fair dealing in UK

On Tuesday, September 17, 2002 12:31 PM, Karl-Erik Tallmo [SMTP:tallmo[_at_]nisus.se] wrote:
> Hello all,
>
> Can anyone with knowledge in UK law explain to me how it is possible
> that the same law (Copyright, Designs and Patents Act 1988) in
> chapter 3, section 30 says:
>
>
> "Fair dealing with a work for the purpose of criticism or review, of
> that or another work or of a performance of a work, does not infringe
> any copyright in the work provided that it is accompanied by a
> sufficient acknowledgement"

This is one of two "fair dealing" sections; the other is S.29, which provides for fair dealing for research or private study. (note that both these sections may be amended within the coming months as part of the implementation of the EU Copyright Directive).

It anticipates the circumstances of quotation of short excerpts in reviews that are subsequently published.

However, both sections are unclear about what constitutes "fair dealing": they say what is not fair dealing, but nowhere is the term defined. Caselaw has emphasised that the test of fairness has to be considered in the context first, of the specified purposes, and secondly, of the specific case: the dealing must be fair for the permitted purpose and in the circumstances of the case in question.

> while section 38 says:
>
>
>
> "38.-(1) The librarian of a prescribed library may, if the
> prescribed conditions are complied with, make and supply a copy of an
> article in a periodical without infringing any copyright in the text,
> in any illustrations accompanying the text or in the typographical
> arrangement.
>
> (2) The prescribed conditions shall include the following-
>
> (a) that copies are supplied only to persons satisfying the librarian
> that they require them for purposes of research or private study, and
> will not use them for any other purpose;
>
> (b) that no person is furnished with more than one copy of the same
> article or with copies of more than one article contained in the same
> issue of a periodical; and
>
> (c) that persons to whom copies are supplied are required to pay for
> them a sum not less than the cost (including a contribution to the
> general expenses of the library) attributable to their production."

S.38 is one of the "library privileges". Unlike ss.29 and 30, it is not subject to a test of fairness; it is quite specific as to what may be supplied and the conditions are as clear as the convoluted language of the Regulations (Statutory Instrument no. 1212 of 1989) containing the Prescribed Conditions can make them.

> Why is not the purpose of criticism included in section 38 as one of
> the non-infringing conditions? Either section 30 has precedence here
> or there seems to be some sort of normative conflict.

There is no conflict. The two exceptions are separate; and need to be considered separately.

> This means for instance that I cannot order a copy from a library of
> a magazine page where there is an old ad from the 60's for the drug
> thalidomide, and then use that image as an illustration in a critical
> article I am writing about the drug industry?

This is probably true, but not for the reasons you give. The copy is made by the library for supply to you under the provisions of S.38; S.30 would apply to the subsequent reproductions in the published article. However, when you obtain a copy under S.38, you are required to sign a declaration in the form set out in the Regulations, which says, amongst other things, "I declare that... I require the copy for the purposes of research or private study... and will not use it for any other purpose". Although you would probably not infringe copyright by including the article in your review, you would be breaching the terms of the undertaking given in the declaration.

> Fair dealing (and fair use in the US) is supposed to facilitate
> public education, public debate and similar worthy purposes. Is this
> not the case here, or am I missing something?

The problem in this case is not with the fair dealing provisions, but with the restrictions imposed by S.38. These are necessarily tight; they are intended to be easy to apply objectively whereas a fairness test would introduce a considerable subjective element. It is inevitable that wherever predefined objective criteria are used, cases such as yours will arise; I have no doubt, however, that many of those operating document delivery services under the library privilege prefer the certainty that results.

There is a good argument that, in the absence of the test of fairness, the library privilege in s.38 conflicts with the three-step test of Article 9.2 of Berne; certainly, the scale of document delivery carried out under s.38 by, in particular, the British Library, is considered by many publishers to undermine the individual article supply aspects of their business.

Edward Barrow
New Media Copyright Consultant
http://www.copyweb.co.uk/
***Important: see http://www.copyweb.co.uk/email.htm for information about the legal status of this email *** Received on Wed Sep 18 2002 - 08:57:57 GMT