Fair Dealing Vs Fair Use Uk Vs Us.
1. Introduction: Fair Dealing vs Fair Use
Fair dealing (UK) and fair use (US) are legal doctrines allowing limited use of copyrighted works without permission from the copyright owner. Both seek to balance copyright protection with public interest, but they differ in scope, flexibility, and judicial interpretation.
UK Fair Dealing: Defined in the Copyright, Designs and Patents Act 1988 (CDPA), with specific enumerated purposes.
US Fair Use: Codified in 17 U.S.C. § 107, with a flexible four-factor test.
2. Legal Framework
United Kingdom
Copyright, Designs and Patents Act 1988: Sections 29–30
Permitted purposes:
Research and private study
Criticism, review, and news reporting
Quotation
Parody, caricature, or pastiche (added in 2014)
Courts evaluate: purpose, amount used, and impact on market
United States
17 U.S.C. § 107: Four-factor test
Purpose and character of the use (commercial vs nonprofit, transformative)
Nature of the copyrighted work
Amount and substantiality of the portion used
Effect of use on the market value
Highly flexible, allows broader uses (education, commentary, parody, transformative work)
3. Key Differences
| Feature | UK (Fair Dealing) | US (Fair Use) |
|---|---|---|
| Nature | Closed list of purposes | Open, flexible four-factor test |
| Transformative use | Limited recognition | Central to analysis |
| Amount used | Usually small portion | Flexible; context-dependent |
| Market effect | Considered but secondary | Major factor |
| Applicability | Narrow, statutory | Broad, judicially adaptable |
| Parody / satire | Recognized post-2014 | Recognized long before, central in US law |
4. Key UK Case Laws
Case 1: Hubbard v Vosper [1972] 2 QB 84
Issue: Quotation for review
Facts: Author sued for copyright infringement over quotations in a critical review.
Decision: Defence allowed.
Reasoning:
Fair dealing includes criticism or review
Amount taken must be justified by purpose
Significance: Landmark UK case defining criticism/review exception.
Case 2: Ashdown v Telegraph Group [2001] EWCA Civ 1142
Issue: Newspaper quotation of political diary
Facts: Telegraph quoted political diaries without permission.
Decision: Defence failed.
Reasoning:
Amount taken was excessive
Use exceeded what was necessary for fair dealing
Significance: Emphasized proportionality and necessity in fair dealing.
Case 3: Pro Sieben Media AG v Carlton Television [1999] EWCA Civ 1889
Issue: News reporting
Facts: TV channel broadcast clips of a European show without license.
Decision: Defence succeeded in part.
Reasoning:
Purpose was reporting current events
Clips were relevant and not excessive
Significance: News reporting allowed if clips are proportionate and relevant.
Case 4: Deckmyn v Vandersteen [2014] (CJEU on parody)
Issue: Parody exception
Facts: Political cartoon using copyrighted comic strip.
Decision: Fair dealing for parody allowed.
Reasoning:
Must evoke existing work while being noticeably different
Cannot compete with original work
Significance: Clarified parody exception in EU/UK law.
Case 5: University of London Press v University Tutorial Press [1916] 2 Ch 601
Issue: Educational copying
Facts: Students copied exam questions for private study.
Decision: Fair dealing allowed.
Reasoning:
Private study/educational purposes fall under fair dealing
Only limited portions may be used
Significance: Early precedent for educational fair dealing.
5. Key US Case Laws
Case 6: Campbell v Acuff-Rose Music, Inc. [1994] 510 U.S. 569
Issue: Commercial parody of “Oh, Pretty Woman”
Facts: Rap group 2 Live Crew created a parody version
Decision: Fair use allowed
Reasoning:
Transformative nature critical
Commercial motive not fatal
Significance: US courts recognize parody as transformative fair use.
Case 7: Sony Corp. of America v Universal City Studios (“Betamax”) [1984] 464 U.S. 417
Issue: Home video recording for personal use
Facts: Universal sued over VCR copying
Decision: Fair use allowed
Reasoning:
Time-shifting for personal, non-commercial use is fair
Significance: Broad application of personal/private fair use.
Case 8: Authors Guild v Google [2015] 804 F.3d 202
Issue: Google Books digitization
Facts: Google scanned books for search indexing
Decision: Fair use allowed
Reasoning:
Highly transformative, non-expressive use
Public benefit outweighs market harm
Significance: Expands transformative use doctrine to digital tech.
Case 9: Harper & Row v Nation Enterprises [1985] 471 U.S. 539
Issue: Quotation of unpublished memoir
Facts: Nation magazine published excerpts from Ford’s memoir
Decision: Fair use denied
Reasoning:
Work was unpublished
Amount and effect on market weighed against fair use
Significance: Highlights market effect and unpublished work as critical factors.
Case 10: Kelly v Arriba Soft Corp. [2003] 336 F.3d 811
Issue: Thumbnail images in search engine
Facts: Arriba used reduced-size images
Decision: Fair use allowed
Reasoning:
Transformative, non-commercial use
Market effect minimal
Significance: Illustrates US fair use flexibility in digital context.
6. Comparative Analysis
| Feature | UK (Fair Dealing) | US (Fair Use) |
|---|---|---|
| Scope | Narrow, purpose-specific | Broad, flexible |
| Transformative use | Recognized post-2014 (parody) | Central doctrine |
| Amount used | Limited, proportionate | Flexible, context-dependent |
| Market effect | Considered but secondary | Highly influential |
| Educational use | Allowed for research/study | Often favored under factor 1 and 4 |
| Digital / tech application | Less tested | Extensively tested (Google Books, search engines) |
7. Key Observations
Fair dealing is a closed list, US fair use is open and flexible.
Transformative use is key in US but limited in UK/EU until recent parody exceptions.
Market effect plays a stronger role in US fair use analysis.
Digital/tech context favors US law due to flexible doctrine (e.g., search engines, AI indexing).
UK doctrine emphasizes proportionality, necessity, and purpose; US doctrine emphasizes transformation, purpose, and market effect.
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