Fair Dealing

A Counterpart to U.S. Fair Use

Fair dealing is a crucial exception in the copyright laws of countries like the United Kingdom, Canada, and Australia. It is conceptually similar to the ‘fair use’ doctrine found in the United States, as both aim to balance the rights of copyright holders with the public interest in allowing limited use of protected works for purposes that benefit society. However, the legal approach of the two doctrines is fundamentally different.

The Core Distinction: A Prescriptive vs. Flexible Approach

The primary difference between the two systems lies in their framework:

• Fair Dealing (e.g., UK, Canada): Is a prescriptive and closed-ended system. The law provides an exhaustive list of specific, permitted purposes. If a person’s use of copyrighted material does not fall neatly into one of these categories, it cannot be considered fair dealing, regardless of how ‘fair’ it might seem in a general sense.

• Fair Use (U.S.): Is a flexible and open-ended system. It does not provide a list of permitted uses. Instead, a court will weigh four factors (the purpose of the use, the nature of the work, the amount used, and the effect on the market) on a case-by-case basis to determine fairness. This makes it more adaptable to new technologies but also less predictable.

The Permitted Purposes

While the specifics vary by country, the legally defined purposes for fair dealing almost always include:

• Research and Private Study: Using material for non-commercial academic or personal learning.
• Criticism or Review: Quoting from a book or using a clip from a film in order to analyze or critique it.
• News Reporting: Including excerpts of a work in a news broadcast or article to report on current events.
• Parody and Satire: In many countries (like the UK and Canada), parody and satire have been more recently added as a permitted purpose, recognizing them as a form of criticism and commentary.

For a filmmaker, particularly a documentarian, fair dealing is a vital right. It is the legal foundation that allows them to include clips of existing films, news broadcasts, or other copyrighted media in their own work for the purpose of commentary or critique, without having to secure a potentially expensive or unobtainable license from the copyright holder.