Duhaime's Law Dictionary


Fair Dealing Definition:

A limited exception to the exclusivity of intellectual property allowing fair critique or private study use of the protected material, and with appropriate acknowledgement.

Related Terms: Research, Copyright, Fair Use

In the United States, fair dealing is referred to as fair use.

In the context of copyright law, fair dealing has been described at Volume 9(2) of Halsbury's Laws of England as:

"Fair dealing with a literary, dramatic, musical or artistic work for the purposes of research for a non-commercial purpose does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgment."

Although copyright first saw the light of day in the common law, it has been the subject of statute since 1709. In that context, fair dealing has been defined and, in some jurisdictions, such as the United States, referred to as fair use.

In Hubbard, Lord Denning wrote:

"It is impossible to define what is fair dealing. It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be a fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression. As with fair comment in the law of libel, so with fair dealing in the law of copyright. The tribunal of fact must decide."

In CCH Canadian, Canada's Supreme Court wrote, at ¶53, that the:

"... following factors be considered in assessing whether a dealing was fair: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work."

The copyright statute ought always to be the first resource in regards to fair dealing. For example, these three statements of law from the Copyright Act of Canada:

"Fair dealing for the purpose of research or private study does not infringe copyright.

"Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned (a) the source; and (b) if given in the source, the name of the author, in the case of a work, performer, in the case of a performer’s performance, maker, in the case of a sound recording, or broadcaster, in the case of a communication signal.

"Fair dealing for the purpose of news reporting does not infringe copyright if the following are mentioned (a) the source; and (b) if given in the source, the name of the author, in the case of a work, performer, in the case of a performer’s performance, maker, in the case of a sound recording, or broadcaster, in the case of a communication signal."

REFERENCES:

Categories & Topics:


Always looking up definitions? Save time with our search provider (modern browsers only)

If you find an error or omission in Duhaime's Law Dictionary, or if you have suggestion for a legal term, we'd love to hear from you!