Fair dealing v fair use

On 4 November, during a speech to an audience of technology entrepreneurs in East London the Prime Minister David Cameron announced a review of intellectual property laws to ‘make them fit for the internet age’. One of the mooted changes is the introduction of a US-style fair use defence. Although the defence of fair dealing exists in the UK it requires an alleged infringer to invoke it by reference to particular circumstances for example fair dealing for the purpose of criticism or review or fair dealing for the purpose of reporting current events (s. 30 Copyright Designs and Patents Act 1988) and the dealing must then be shown to be fair. This means that uses not falling within these categories are excluded from protection. Most famously, there is no parody defence to infringement.
By contrast, the fair use defence in the United States is somewhat broader and courts will take numerous factors into account to determine whether a use is fair or not. The relevant provision lists circumstances such as criticism and news reporting (§107 USC 17) and elucidates the factors that courts will take into account to determine whether a use is fair including the purpose of the use and whether the use was commercial. The list is not, however exhaustive and courts have taken other factors into account such as whether the use constituted unfair competition.
Despite its apparent flexibility, the fair use doctrine is not without its critics (see e.g. Cotter and generally D’Agostino). In particular, the narrow cases on fair use in the United States have tended to protect similar uses that have been found as fair in the UK and, it is argued, have consequently had a chilling effect on expression, including on the internet, because individuals remain unsure about whether a particular use is fair and are unwilling to risk incurring the costs of defending themselves in an infringement suit. Indeed, fair use doctrines might not prove to be as internet-friendly as the Government hopes.

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