Copyright Uncovered: Fair Use v Fair Dealing

    For autumn’s Copyright Uncovered, we’re looking at the concepts ‘fair use’ (USA) and ‘fair dealing’ (UK). We’ve reached out to  our American sister society, Artists Rights Society (ARS), for their perspective from across the pond.

    What do ‘fair use’ and ‘fair dealing’ actually mean?

    ‘Fair use’ and ‘fair dealing’ are terms that relate to situations where using an artistic work doesn’t require permission or a licence from the copyright owner. ‘Fair use’ is a defence under US law, whereas ‘fair dealing’ is used in relation to copyright exceptions in the UK.
     
    While the aim behind both is to strike a balance between rightsholders and users, this is more than just a case of UK-US terminology: they encompass two similar yet fundamentally different concepts.

    Fair dealing explained

    UK law has copyright exceptions which are the specific uses of artistic works where permission isn’t required from the copyright owner. For certain exceptions, the law goes one step further, that the use of an artistic work must also be ‘fair’, hence ‘fair dealing’.  
     
    The following exceptions are known as ‘fair dealing exceptions’ meaning the use must also be ‘fair’ for these exceptions to apply: 
    • non-commercial research or private study
    • criticism or review
    • reporting current events
    • illustration for instruction, quotation, or parody, caricature or pastiche
    The list of fair dealing exceptions is set in law, which means that it would be irrelevant if the use of an artistic work is fair but for a purpose that is not listed as a ‘fair dealing’ exception in the law. In this way the law provides more certainty.
     
    ‘Fair’ is not defined in UK law but a number of factors have been developed to help determine fairness, as outlined in our ‘fair dealing’ factsheet

    Fair use explained

    ‘Fair use’ exists in the US and is a more general concept than ‘fair dealing’. Our sister society ARS, who work under US law, explain that the ‘fair use’ can apply to a range of uses such as criticism, comment, reporting, teaching, scholarship or research, but this list is not definitive.
     
    Four factors are applied to the facts of a case to determine whether a use is ‘fair’:
    • the purpose and character of the use
    • the nature of the work
    • the amount used and the substantiality of what has been taken from the work
    • The effect of the use on the potential market value for the work
    These factors can be hard to decide, and US courts have heard numerous fair use cases. ARS has prepared a note for us on 'fair use', you can read it here.

    ‘Fair use’ v ‘fair dealing’ – the differences

    The UK legal doctrine applies to specific uses of an artistic work as there is a definitive list of fair dealing exceptions, so there is more certainty.  In the USA, fair use could apply to a variety of situations, which means that users and copyright owners are commonly challenged to counter fair use assertions. There are certainly differences between the two doctrines but also considerable overlap, for example, when the use of the copyrighted work is in the context of news reporting.

    The problems with ‘fair dealing’ (UK)

    As there is no definition of ‘fair’ in the law books, factors to determine fairness, as detailed in our fair dealing factsheet, have been developed by court cases. However, there is a limited number of cases that have addressed fair dealing, especially for more recent exceptions
     
    For example, in 2014 a fair dealing exception was introduced for quotation – however there have been no cases in UK courts that will determine what is ‘fair’ when it comes to quoting an artistic work.

    The problems with ‘fair use’ (US)

    ‘Fair use’ is a more general concept which is open to interpretation, this means decision-making can be difficult and more subjective. Analysing the four factors of ‘fair use’ for artistic works can be difficult – for example artistic works are often used or reproduced in their entirety so the ‘amount used’ may be less meaningful. US cases have also struggled to determine conclusively whether and to what extent the market value for an artistic work is affected.

    Three things to remember

    Different countries, different laws

    The terms ‘fair use’ and ‘fair dealing’ are not interchangeable. An exception that applies in the US may be regarded as an infringement in the UK. You should therefore seek advice specific to each country.

    The deal with ‘fair dealing‘

    ‘Fair dealing’ is more specific, ‘fair use’ is more general. This means that artists and users have more certainty about applying the law. See our exceptions factsheet for more guidance.

    Stay vigilant

    Artists need to be vigilant in safeguarding their exclusive rights under the copyright law, staying aware of the different court outcomes that could happen in the US v UK.
     

    DACS and ARS

    DACS has a large and growing network of sister societies around the world, including ARS in the United States.
     

    Full list of sister societies

     
    This means that DACS can license your artistic works in multiple other countries through this system, provided the client is based in the UK, streamlining the use of your time. For our Copyright Licensing members, too, DACS can ask our sister societies to follow up on license requests as well as infringements arising in the countries in which they are based.

    Copyright advice for members

    Are you a Copyright Licensing or Artist’s Resale Right member at DACS? Remember to take advantage of our free copyright advice service for these members:
     

    Find out how it works

     
    We also have lots of useful information about ‘fair use’ and ‘fair dealing’ on our website. Browse related pages:

    Fair dealing factsheet 
    Exceptions factsheet   
    Copyright uncovered   
    Knowledge Base

      
    Not a member? Sign up now:

    Artists    
    Beneficiaries    

     
     
    The content of this article is not intended to apply to individual circumstances. It does not constitute legal advice, it is not a substitute for independent legal advice and should not be relied upon as such. 
     
    Image: 9-Name Variation: RGB, CMY, VLO, 2015 © Jonathan Parsons. All Rights Reserved, DACS/Artimage 2018.

    Posted on 19/09/2018 by Jessica Bancroft