RE: fair dealing in UK

Karl-Erik Tallmo [tallmo[_at_]nisus.se] wrote:
> 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,
> 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."
>
> 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 are any number of explanations. The first is that the Parliament intended libraries to be able to copy articles etc on behalf of academic researchers but not journalists. Its probably more likely that academics or librarians lobbied for the inclusion of this clause and not journalists.

You could argue the legislative intent either way. I think there is a strong argument that the library copying a work on behalf of somebody covered by fair dealing is itself a fair dealing whether the purpose is for research and study or criticism and review. Section 38 is merely clarifying. I guess the real question is, is there a library with the article that agrees?

For a recent case considering s 30 see:
http://www.bailii.org/cgi-bailii/disp.pl/ew/cases/EWCA/Civ/2000/37.html?query=cdapa1988289+s30

Note that Irish legislation assumes that copying by a third party is permitted (at least for research and private study) but goes on to restrict when it is allowed.
http://www.bailii.org/cgi-bailii/disp.pl/ie/legis/num%5fact/carra2000282/s50.html?query=%22+fair+dealing%22

See also Australian cases on the equivalent ss. 41 and 49 (there are a number of references to English decisions in these reports):
http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s41.html http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s49.html

http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/133clr1.html?query=ca1968133%20s49

http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/147clr39.html?query=ca1968133%20s41
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high%5fct/147clr61.html?query=ca1968133+s41
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/federal_ct/2001/108.html?query=ca1968133%20s41

http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/federal%5fct/unrep835.html?query=ca1968133+s49

> 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?
>
> Karl-Erik Tallmo
>
>
>
> --
>
> _________________________________________________________________
>
> KARL-ERIK TALLMO, Swedish writer, lecturer
>
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Received on Thu Sep 19 2002 - 02:05:41 GMT