Focus on Fair Dealing

The Fair Dealing test has been mentioned before in this blog. The majority of the recently updated exceptions to copyright rely upon this test and so it is in the spot light, although it was already an established concept in UK Copyright law.

In contrast to the concept of “fair use” in US copyright law, which can be applied generally, “fair dealing” in UK copyright law is only relevant in the context of the statutory exceptions. It is a test of whether we are applying the exception correctly and therefore of whether we can rely upon it for protection.

The UK Intellectual Property Office say: “There is no statutory definition of fair dealing – it will always be a matter of fact, degree and impression in each case. The question to be asked is: how would a fair-minded and honest person have dealt with the work?”* Therefore it will always depend upon the context, but two key questions will generally apply:

• Could we be damaging the copyright owner’s interests by our use of their work? For example by producing something in direct competition?
• Are we using more of their work than is really necessary in the particular circumstances.

By way of example, copying an extract for the purposes of setting an examination may be fair dealing whereas reproducing the same material in a published work under the Quotation exception (which applies from 1^st October)might not be fair dealing.

*IPO (2014),Exceptions to Copyright: Guidance for creators and copyright owners