Re: Re: Fair Dealing / Fair Use

From: Bernard Katz <bkatz[_at_]uoguelph.ca>
Date: Thu, 09 Feb 2006 18:30:00 -0500

I thank Lawrence Locke and Steven Jamar for their comments - very helpful! There are subtle and not-so-subtle differences between US "fair use" and Canadian "fair dealing" provisions. The fair dealing language is similar to that of fair use ("29. Fair dealing for the purpose of research or private study does not infringe copyright."), but there are some 'moral' stipulations (introduced in 1993) when the purpose is criticism or review, or news reporting. As argued by Prof. Jamar, it is both a user right which limits the rights of the copyright holder and a defence of the user right.

Lawrence Locke set out the difference between fair use as a user right and other user rights very clearly. Yes, there is no infringement under fair use (or fair dealing), but the alleged infringer has the burden of proof rather than the copyright holder. This shift is significant in my view as the burden of proof requires much more 'demonstration' than do other limitations on holders' rights. In Prof. Jamar's example of photographing a building from a public place, the proof is straightforward and rather factual, not lending itself easily to challenge. As a result, there likely are few cases of infringement brought against users over that limitation to copyright holders' rights, since the right is clear to users.

In cases where the alleged infringement is defended as a fair use or fair dealing with the work, the burden of proof is significantly more complex and subtle, going beyond simple facts and requiring interpretive determinations  on the part of the court. The Australian statute, as I read it, seems to have reduced the problems for users in this regard.

It sets out some thresholds for fair dealing that allow relatively easy clarity on the part of a user to determine outside a court case whether a use is fair dealing or not. In other words, it states that 'such and such' is fair dealing, but more that that may also be fair dealing with a work. Thus a quantitative descriptive use is set out which reduces the need for qualitative determinations on the part of users in the instances given.

Perhaps some of our Australian colleagues on the list could comment on how this approach has functioned as a practical way of introducing some degree of certainty into their fair dealing user right? Cheers,
Bernard Katz, former head, Special Collections and Library Development

                            McLaughlin Library, University of Guelph

    author, descriptive bibliog. of L.M. Montgomery's books (in progress)     and former chair, Ontario Library Association Copyright Task Force Received on Fri Feb 10 2006 - 04:30:00 GMT