Re: Fair use

From: Bernard Katz <bkatz[_at_]uoguelph.ca>
Date: Fri, 03 Mar 2006 13:40:55 -0500

On Tue, 28 Feb 2006, Samuel Murray wrote: wrote:

> ...[snip]... The way I understand it, "fair use" is
> not something which is either granted or withheld by the author of work.
> Instead, it is a concession granted by law or in terms of the principles of
> fairness itself. There is nothing an author can do, legally speaking, to
> prevent the use of his work if such work is deemed "fair use". Even if the
> author would try to prevent copying, and fails to do so, and the copying
> would be "fair use" type of use, the fact that he had attempted to prevent
> the use would have no legal effect on the measure of fairness of "fair
> use", am I right?

I also agree that Samuel Murray almost has it completely right. But the difficulty here, as I see it in both "fair use" and "fair dealing" is that the decision as to whether a specific use is considered "fair" or not lies in the hands of a judge, AFTER use has been made of the work. A user may have a pretty good idea, based on the criteria already discussed, as to whether the use about to be made is fair, but said use is not actually deemed to be fair until a suit is brought and judgement rendered. Thanks to our Australian colleague, I can now be certain that the Australian Act gets around this initial degree of uncertainty for users quite nicely. As has been pointed out, however, what had been designed as a minimum to be considered fair dealing (ie. at least this much) has gradually turned into what to all extents and purposes is a sort of 'standard' of fair dealing.

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 Mar 03 2006 - 23:40:55 GMT