Fair’s Fair? (A Very Brief Overview of Fair Use and Fair Dealing)

If you read this blog, there’s a good chance you create some kind of content that eventually finds its way to the internet. There’s also a good chance some of that content occasionally incorporates other people’s copyrighted material.

Now here’s the million dollar question: Are you sure (and I mean really sure) you know what and how much you’re allowed to use of that copyrighted work?

If you have no idea, you’re not alone. Fair use (or “fair dealing” depending on where you live) isn’t black and white. In fact, it can be highly amorphous and subjective depending on the specific case. However, one thing doesn’t change: if you’re serious about creating, distributing, or sharing content online that makes use of copyrighted work in any way, you’ll want to make sure you have your fair use/dealing bases covered lest you receive a strongly worded cease and desist letter in your mailbox.

Inspired by a recent episode of The Web Ahead where fair use author and advocate Pat Aufderheide spent the better part of an hour clarifying and debunking myths about legally permissible usage of copyrighted material, I decided to dig deeper. (Yeah I’ll confess, I thought it would be fun to read about copyright law in my spare time.)

As Pat pointed out in the podcast, fair use is like a muscle—we have to use it or risk losing it. And all too often, we simply default to excluding copyrighted material, opt for Creative Commons licensed or public domain content, or take our chances incorporating what seems like a reasonable amount of a copyrighted work in what seems like a reasonable way without understanding what’s truly considered fair usage.

So the first important thing to note is that while international agreements have somewhat standardized the provision and transference of copyright between countries, what counts as fair use/dealing varies significantly depending on where you live.

For instance, fair use is a primarily an American concept (though also employed by Israel) and tends to more liberal than fair dealing, which is predominantly used in Commonwealth countries (including Canada, where I live).

In the interest of keeping things concise, I’m going to look at fair use vs. fair dealing from a US vs. Canada perspective. So here goes…

According to Pat Aufderheide, qualifying fair use (US) of copyrighted material comes down to two essential questions:

  1. Was the new work transformative? (Does it create new culture or commentary in some way, or are you merely redistributing the original work again?)
  2. Was the amount of copyrighted content used appropriate? (For the specific context, of course)

(A meatier explanation of fair use criteria can be found on the US Copyright Office site.)

By comparison, fair dealing in Canada is more restrictive. According to a lengthy article by Giuseppina D’Agostino (you’ve been warned), the Supreme Court of Canada has established six criteria for determining fair dealing:

  1. The purpose of the dealing (Especially whether it’s for commercial purposes)
  2. The character of the dealing (In other words, how many copies were made and how widely were they distributed?)
  3. The amount of the dealing (Fairly straight-forward, but highly dependent on the context of the case)
  4. Alternatives to the dealing (If a non-copyrighted near equivalent is available, better stick with that one)
  5. The nature of the work (If the original material hasn’t been published yet, and your usage helps widen public dissemination, then the dealing may be seen as more fair, but this gets complicated with confidential material)
  6. The effect of the dealing on the work (Will your use of the copyrighted work impact the market for that work?)

There’s certainly overlap, but clear differences between the two countries—a point often taken for granted, especially (I would argue) north of the 49th.

One thing that doesn’t differ across geopolitical boundaries is the abundance of myths about fair use/dealing that are mistakenly understood as universal laws. A few of the common ones include:

  • “The original copyright holder should want me to spread their work.” Perhaps true, but this argument won’t hold water in a lawsuit. Even in Canada, if “the nature of the work” criterion is the only leg you have to stand on, then your fair dealing case is probably thin.
  • “As long I give credit to the original creator, then it’s ok to use or adapt their copyrighted material as I require.” Nice try, but alas, no.
  • “If I use less than one chapter / 30 seconds / 10% / etc. of this copyrighted work, then it’s considered fair usage.” Nope. These are usually institution- or industry-specific guidelines. Generally, there are no hard and fast rules about fair use/dealing thresholds.
  • “Fair use/dealing isn’t worth the hassle today.” In the face of rampant DRM and perpetually extending copyright terms, it’s worth the hassle more than ever.
Now it’s time for the likely obvious disclaimer: I’m definitely not a lawyer, so consult a one regarding fair use or fair dealing where you deem necessary. You may also want to do some googling to find out if any guidelines or case studies specific to your industry or profession exist already. Precedent can never hurt.

Update

Canadian copyright law saw major changes during summer 2012. The definition of fair dealing was finally expanded to include education, parody, and satire. Non-commercial use exceptions also expanded. Somewhat remarkable considering the usual draconian direction of copyright law amendments over the last couple decades.

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