Re: fair dealing in UK

In-Reply-To: <a05001900b9acb7f87928@[212.151.57.13]> Karl-Erik Tallmo asked:

> 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"
>
> 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,
> {snip}
> 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.
>
> 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?
>
> 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?

I am not a lawyer and don't have my copy of the Act handy.

I think what you're looking at here is indeed a drafting or amending foul-up, probably generated in the lobbying process.

I would expect that courts would find that S.30 was intended as a general specification of fair dealing in copies (howsoever obtained).

So it would have been Parliament's intention that S.38 - part of the setting-out of specific things that particular non-profit librarians may do - did *not* override general fair dealing.

To be sure in a case like this, you might have to read the Parliamentary debate in Hansard for clues as to what Parliament did intend. Unless anyone knows of any case law to the contrary. I don't think _Marks & Spencer_ applies, not involving the relevant class of library...

Mike Received on Wed Sep 18 2002 - 13:37:44 GMT