Navigating Between Fair Use And Fair Dealing- Copyright And Educational Use Exception .docx

Navigating between Fair Use and Fair Dealing: Copyright and educational use exception Abstract: In this paper, I wish to present the underlining difference between ‘Fair Use’ and ‘Fair Dealing’ when it comes to the Copyright Laws of various countries across the globe. In most of the countries, their Copyright Act aims at maintaining a fair balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator1. The first exception to the general rules of copyright laws is the approach of Fair usage. It is seen as the most flexible limitation and exception put on copyright holders. The countries which have implemeted the fair use model are USA, Philippines, and Israel, to name a few. An important point to note for this approach is that any use of the creator’s work can come under fair use as provided by the law and its limits. The second approach, ‘Fair Dealing’, is just an extension of the former approach. This model is adopted by many commonwealth countries such as India, Canada, United Kingdom, and Australia. This model works on the ‘fairness’ criteria where ‘reasonable use’ of work is guaranteed by the law. But an important question to which arises post this ‘reasonable constraint’ is that what is reasonable as deemed under the law? Because unlike the fair use model, fair dealing also looks at the purpose of use of the work under scrutiny. The model creates a two-stage analysis: first, whether the intended use qualifies for one of the permitted purposes, and second, whether the use itself meets the fairness criteria. By contrast, fair use raises only the second-stage analysis, since there are no statutory limitations on permitted purposes.2

Key features of a Fair use model: Under the copyright laws and remedies available for infringement, the doctrine of fair use — as adopted by the US, acts as a safety net against the rigid implementations of these laws3. Under this

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Nair, Meera (2013), ‘Fairness of Use: Different Journeys’, University of Ottawa Press Murray, Kenneth (1994), ‘Copyright and the educator’, Phi Delta Kappa International, Vol. 75, No. 7 3 Eldred v Ashcroft, 537 US 186 (2003). 2

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model, if a work qualifies to be one of either — criticism, comment, news reporting, teaching, scholarship and research, as well as acts of parody, satire and even artistic appropriation, then such work is not counted as copyright infringement4 Under the US copyright regime, one must fulfil the four ingredients5 — as laid down in their copyright act, to establish whether a particular piece of work falls within the ambit of fair use exception: • the purpose and character of the use; • the nature of the copyright work; • the substantiality of the portion used in relation to the copyright work; • and the effect of the use on the potential market for or value of the copyright work. The ‘transformative use of work’ comes into play when an original work is expressed in an altered manner or just that the expression of this work is new and different from the original content6. This element is considered to be very important when one is analysing elements of fair use and how one is to establish whether a work falls under the category of fair use. Broad categories of transformative uses demonstrating a change in purpose or character under the fair use have been identified7. These include, among other things: commenting on or criticising the original work, or targeting the original work for parody; using the original work to comment on something else; re-contextualising the original work through changing the meaning of the work8; and changing the purpose of the original work within an expressive context9.

These days, most of the activities or content that is put up on social media is done so with the intent of generating comments, critiques, and observations from the users10. In cases like these, it becomes thoroughly difficult to decide whether an activity can be exempted from infringement and can come under the category of fair use. It is majorly because of the four factor test and how it applies differently for different cases.

Fair Dealing model and its relevance in copyright infringement through social media:

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US Copyright Act, § 107. ibid 6 Campbell v Acuff-Rose Music Inc, 510 US 569 (1994) (Campbell). 7 Blanch v Koons, 467 F 3d 244 (2nd Cir, 2006) 8 Perfect 10 Inc v Amazon.com Inc, 508 F 3d 1146 (9th Cir, 2007) (Perfect 10). 9 Kelly v Arriba Soft Corporation, 336 F 3d 811 (9th Cir, 2003) 10 Pierre Leval, ‘Toward a Fair Use Standard’ (1990) 103 Harvard Law Review 1111, 1105–7. 5

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The fair dealing model, as followed by the UK and Australia, exempts only certain works to fall in the category of copyright infringement. The British and the Australian legislators took to a more authoritative approach where they try to strike balance between the two stakeholders — the copyright owner and the public interest. In the UK there are fair dealing exceptions for the purpose of research and private study11, as well as for the purpose of criticism, review and news reporting12. These exceptions are conditional on a sufficient acknowledgement being made, except in respect of fair dealing for the purpose of private study13. Exceptions for cases of quoting a work or creating parodies were only recently introduced in the 2014 pursuant to The Copyright and Rights in Performances (Quotation and Parody) Regulations 201414. The fair dealing exceptions are the same for Australia when compared with UK in cases for reviewing, criticising, news reporting, research and study. The Copyright Amendment Act 2006 made way for a new category by incorporating parodies and satire in the exception15.

The Australian Law Reform Commission in one of its reports recommended a reform that the fair use exception must be introduced as an extension of Australia’s existing fair dealing exceptions16. The Productivity Commission tried incorporating and advertising this same recommendation n its Draft Report on Intellectual Property Arrangements17.

When it comes to the fair dealing model as an exception (as compared to the fair use model) within the available categories of work, it is of lesser benefit to the people who put up their copyrightable work on social media and want to defend the same. In particular, the fair dealing exceptions for the purposes of caricature, parody or pastiche in the UK18, as well as for parody or satire in Australia19 respectively, are by far the most relevant to social media users today. This stems from the view that these users engage activities pertaining to generating content on social media. When the new exception for parodies was not introduced in the Australian copyright laws, the only fair dealing exception

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UK Copyright Act, s 29. . UK Copyright Act, s 30. 13 UK Copyright Act, s 29(1C). 14 The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 (UK) SI 2014/2356 (UK Copyright Regulations 2014), reg 5. 15 Australian Copyright Act, ss 41A and 103AA. 16 ALRC, Copyright and the Digital Economy (November 2013) 17 Productivity Commission, Australian Government, Productivity Commission Draft Report on Intellectual Property Arrangements (April 2016). 18 UK Copyright Act, s 30A. 19 Australian Copyright Act, 41A and 103AA. 12

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which was used by the parties was that of criticism and reviewing. Putting parodies in the same category of criticising or reviewing a work gave a very restrictive understanding of the infringement thereby in question, since there wasn't a specific category for satirical works or for parodies for that matter20. Interestingly enough, both the fair dealing exceptions – whether it is for the purpose of caricature, parody or pastiche in the UK or for the purpose of parody or satire in Australia – have never been fought in the domestic courts by the means and mode of litigation in the respective jurisdictions. In short, both the exceptions are untested at this moment. However, recently the European Court of Justice’s decision in one of its judgement shows a sophisticated interpretation of the expression ‘parody’, which takes into account the striking of a ‘fair balance’ between the interests and rights of copyright holders and the freedom of expression of users21. Furthermore, whether a defendant has used the original copyright work to convey a discriminatory message is potentially relevant to the assessment of this ‘fair balance’. In addition, the terms ‘caricature, parody or pastiche’, as well as ‘parody or satire’, remain undefined in their respective statutes, giving courts a considerable scope to interpret these terms. In this respect, as a pastiche refers to a work made from a selection of materials and styles from one or more sources, its broader meaning may make the ‘caricature, parody or pastiche’ defence in the UK more suited for exempting uses – particularly when users modify content on social media – than the ‘parody or satire’ defence in Australia22. On the other hand, however, the newly extended fair dealing exception for the purpose of quotation (whether for criticism, review or otherwise) in the UK may be of limited use in exempting social media uses. The following are the conditions upon which the limits are applied23: • Whether the work is available to the general public • Whether the use of quotation in a a given case is a work of fair dealing • The extent of quotation being no more than is required for its specific purpose • Whether there is a sufficient acknowledgement (it will not matter much if it is impossible due to reasons of impracticality)

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Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14. Johan Deckmyn and Vrijheidsfonds VZW v Helena Vandersteen and Others (Court of Justice of the European Union, C-201/13, 3 September 2014) [26] 22 Nicolas Suzor, ‘Where the Bloody Hell Does Parody Fit in Australian Copyright Law?’ (2008) 13 Media and Arts Law Review 218, 224. 23 UK Copyright Act, s 30(1ZA). 21

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While it is very easy to establish the first condition, it may not always be possible to realise the other three conditions put forth the act. On the whole, because the fair dealing exceptions in the UK and in Australia are more prescriptive than the fair use doctrine in the US, ascertaining whether a use is exempt as a fair dealing exception is more straightforward. Nonetheless, this too involves addressing questions of degree and impression, and can reasonably lead to different determinations24.

Inadequacy of the fair dealing defence: The Parliament introduced the defence of fair dealing under the Copyright Act, 1911, intending to codify the existing laws under the assumption that certain types of undertakings should be condoned on grounds of “fair quotation” and “real and fair abridgement” , this is a defence which can now be found in the Copyright and Patents Act, 1988. There are various limiting factors to this defence: the fact that it has not been properly defined in the statutes, and secondary sources of interpretation including judicial and academic literature makes it changing and unpredictable, thus making it difficult for copy-right producers and users. A leading case provides that, ‘it is a question of how much has been appropriated, qualitatively and quantitatively; the nature of use, including whether the use is competitive or substitutive; and finally, it is a matter of impression.’ — a pragmatic approach can’t be put forth in such cases in most cases. Even after the advisory opinions are given on various issues relating to this defence, yet nothing concrete can be made out from the same. The second issue faced is regarding use of materials used by persons engaged in private study as fair dealing, which doesn’t extend to persons facilitating the same. It is often seen that students and other persons engaged in private study engage in copying as a cheap method of obtaining reading material — this is seen as a result of the ever expanding need for materials and the lack of library resources. A question arose as to whether a lecturer who asks students to obtain reading material pertaining to that given in a reading list will be infringing copyright of the same as, in a way he is promoting the students to copy a work. The Copyright Tribunal had held in Universities UK v. Copyright Licensing Agency, that ‘till the lecturer doesn’t give specific instructions to the students to copy the material, it wouldn’t be considered as an infringement, as the professor is merely distributing a reading list and not giving specific instructions to copy’. A major difficulty regarding the defence of fair dealing is with regard to its limited application, which thus makes educational institutions and their staff liable for copyright infringement everyday. A standard library is not only a house of books but also contains

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Hubbard v Vosper [1972] 2 QB 84

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a number of scanning and photocopy machines, which make facilitate copying. In the case of University of New South Wales v. Moorhouse & Anor25, the Australian High Court had been of the opinion that, 'Educational Institutions were deliberately promoting copying in the library premises by providing copying facilities. The Universities are bound to apprehend a reasonably substantial amount of copying by virtue of the fact that such facilities were provided by them to students int he premise - and thus would make them unlawful.

Universities as Intellectual Property Producers and Consumers: Over time, the education sector, specifically Universities have become aware of the various intellectual property being produced daily in their institutions, thus pushing them to implement various policies and strategies to use the intellectual property produced by their employees to their advantage — though this has not fully crept to the copyright part of Intellectual Property Rights. Historically, Universities have been considered as the earliest publishers of academic works. An academic author may not necessarily be adept and fully aware regarding the various intricacies of an intellectual property right, such as signing publishing contract, or even collecting the licensing income. In such a situation, it is always better that the University takes charge of allIntellectual property produced by its employers. It is usually seen in patent and invention relating intellectual property and not in cases of copyright material — a way of doing would be to introduce the system of a university press, whereby all world produced by employees are to be printed int he same only.

Educational exceptions for librarians: The copyright laws are such that it aims at controlling and providing protection to works which are independent from the educational use exception under the defence of fair dealing26. It is clear that a particular university, or a student, or a teacher can still be considered facilitators for copyright infringement, a librarian s exempted to a certain extent from the 'authorisation' label27 When this exception is applied to a librarian, it is taken into consideration that a librarian has a job that of an amanuensis. This allows the librarian to furnish copies from copyrightable materials such has journals, books, periodicals, and other such published work. However, this exception also comes

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2 [1976] RPC 151 (High Court, A'l 1989. S. Picciotto 'Copyright Licensing: The Case Of Higher Education Photocopying In The United Kingdom', EIPR 2002, 24(9), 438-47; 27 ibid 26

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with limitations. While a librarian may have the freedom to furnish not more than one copy per copyrightable material, they cannot distribute a bulk of this material for the purpose of classroom instructions within universities28. To make this clear, we can use the example of writing something on a whiteboard. One can argue that the said act can be permitted but will have its own shortcomings since there are technologically advanced whiteboards too. As song as the copy cannot be printed out or transferred to other electronic source, simply writing on it can be permitted. But if copied of the same can be furnished, it will fall under the category of copyright infringement.

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5 ss 37-43, CDPA 198

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