Fair Dealing in the Digital
Environment
Dr Venkat Iyer
Barrister
Senior Lecturer, University of Ulster
Law Commissioner, Northern Ireland (UK)
Rationale
Allows for a fair balance between
copyright owner’s interests and the public
interest
 Promotes the advancement of learning
(“free flow of knowledge, ideas and
information”)
 Reduces transactional wastage of time and
costs
 Encourages competition (by preventing
monopolistic behaviour by rights holders)

Purposes
research
or private study of individuals;
reporting current events;
giving of professional advice; or
criticism or review.
NOT for commercial exploitation (or in the
ordinary course of trade)
Other conditions
Copying must be of a reasonable quantity
only
 Further copying is not covered
 Original must have been obtained lawfully

Peculiarities of digital works
Allows for private ‘publication’ and
distribution (i.e. without reliance on
another, e.g. commercial, entity)
 Ease of reproduction
 Potential for manipulation
 But allows greater control of access (e.g.
through password protection)

What is ‘fair’?
Usually left deliberately vague in statute,
to enable flexibility of interpretation
 Largely a question of degree

Fair dealing: possible factors for
consideration
the purpose of the copying
 is the work in question published or not
 the possibility of obtaining the work
commercially at a reasonable price
 the proportion of the work being copied in
relation to the whole of the work
 The effect of the copying on the value of,
or potential market for, the work

‘Reasonable quantity’

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
Usually not defined prescriptively in statute
Commonsense approach adopted, coupled with
guidance in secondary legislation, e.g. one
chapter or 10% of the words in a published work
in electronic form
Cases:
- Time Warner Entertainment Ltd v. Channel 4 TV (1993) –
Clockwork Orange - 8% of film, 40% (12’/30’) of the
programme – held acceptable
- BBC v. BSB (1992) – World Cup football – 14-37 second
clips replayed 4 times in news bulletins – held acceptable
Standards applied

Fairly strict, esp. where the activity in question is
seen to be commercial
e.g. TVNZ v. Newsmonitor Services Ltd (1993): taping of TV and
radio broadcasts by a media monitor and supply of copies of
transcripts to clients held not to fall under ‘private study or
research’ exception, even if the recordings were destroyed within
a short time because the company “neither researched nor
studied anything for itself”
Roy Export Co. Estab. of Vaduz v. Columbia Broadcasting Sys.,
Inc. (1982): use of 75 seconds clip from 72 minute Chaplin film
held not a fair use because it was ‘substantial’ and part of the
‘heart’ of the film
LA News Service v. KCAL-TV Channel 9 (1997): use of 30 second
clip from 4 minute videotape of beating of police brutality held not
a fair use because it was commercial, took the heart of the work
and impinged on the copyright owner’s ability to market the work
Standards applied
Where the matter being copied is intended
to be used in a database of similar
material, it is likely to fall outside fair
dealing because of the increased
commercial value that attaches to the
copy (within the database)
 It is more likely for a fair dealing defence
to succeed in relation to factual works
rather than fictional works (e.g. American
Geophysical Union v. Texaco Inc, 1994)

Standards applied



Copying from unpublished works, or works not
intended for publication, is likely to be looked at
less leniently for fair dealing than copying from
published works
Where a collecting society or other organisation
exists which offers copies of copyrighted work
under reasonable terms, fair dealing will be
interpreted more strictly than otherwise
Use of copyrighted material solely to save money
may defeat a fair dealing defence
Standards applied

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When fair dealing is used in reporting current
events, the material in question must have a real
connection/relevance to the current event being
reported
Any manipulation or distortion of the material
used will defeat a defence of fair dealing
The material should have been obtained lawfully
Simply because a licence has been obtained for
some material connected with the material being
used does not validate a fair dealing defence
Standards applied

Simply because the material in question
has already been published, albeit in
contravention of copyright (e.g. on a
website) does not mean that a fair dealing
defence will succeed
Sufficiency of acknowledgement

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Acknowledgement must be clear and sufficiently
detailed for the reasonable viewer/listener/reader
to make out the original source
It should be shown for long enough to read fully
In visual media, the acknowledgment is usually
superimposed on the clip being used, but
occasionally (e.g. where many clips are used), it
can be made at the end
When acknowledging a broadcaster, its logo may
be sufficient
Occasionally, an oral acknowledgement will do
Enforcement strategies
Watermarking and other anticircumvention technologies and methods
 Use of contractual controls by rights
holders as a superior form of protection
than copyright law (but note pitfalls under
contract and trade practices law in relation
to harsh or unreasonable business terms)
 Relevance of international standards

Other issues
Need to check law in relation to use of fair
dealing defence abroad – not all countries
adopt the same standards
 Need to be careful about use of material
subject to fair dealing in trailers, etc –
usually risky
 Sports clips are sometimes the subject of
express agreement between broadcasters
(e.g. Sports Access Code, UK, allows use
of these in news programmes only)

Concluding observations
‘Reactive’ nature of copyright law – will it
evolve sufficiently quickly to meet the
challenges of the digital environment?
 Can copyright law be fully ‘technology
neutral’?
 Can copyright owners succeed in putting
up an effective case against the growing
pressure for liberalisation of copyright
law?
