Jonathan Band and Deborah Goldman
One of the arguments used by rights holders opposed to the adoption of open-ended fair use or fair dealing provisions outside of the United States is that those jurisdictions would lack a body of case law to guide judges, and it would take decades for such a body of case law to develop. This argument overlooks the fact that those jurisdictions could look to decisions in other jurisdictions with open-ended fair use or fair dealing provisions, such as the United States and Canada, as they develop their own jurisprudence. (Courts in other countries often rely on U.S. decisions in areas where U.S. jurisprudence is very developed, such as software copyright.) Additionally, in cases that fall within the scope of traditional fair dealing, courts could consider decisions from jurisdictions with traditional fair dealing provisions. Significantly, many of the opinions in these decisions are available online.
The following tables indicate by jurisdiction the number of opinions discussing fair use or fair dealing that are available through online databases as of July 1, 2013. (Click here for a printable PDF.)
OPEN-ENDED FAIR USE AND FAIR DEALING
|
Country |
Database |
Number of Cases |
|
United States |
LexisNexis |
1541 |
| WestLaw |
1666 |
|
|
Canada |
LexisNexis |
258 |
| WestLaw |
117 |
|
| HeinOnline, Canada Supreme Court Reports |
136 |
|
|
Hong Kong |
www.judiciary.gov.hk/en/legal_ref/judgments.htm |
7 |
| WestLaw |
10 |
|
|
Philippines |
www.sc.judiciary.gov.ph |
5 |
|
Israel |
LexisNexis |
1 |
TRADITIONAL FAIR DEALING
|
Country |
Database |
Number of Cases |
|
United Kingdom |
LexisNexis |
439 |
| WestLaw |
211 |
|
|
Australia |
LexisNexis |
246 |
| WestLaw |
86 |
|
|
New Zealand |
LexisNexis |
74 |
| http://forms.justice.govt.nx/jdo/search.jsp |
6 |
|
|
India |
www.liiofindia.org/form/search/search1.html |
28 |
|
South Africa |
LexisNexis |
13 |
| www.saflii.org/cgi-bin/search.pl |
1 |
|
|
Malaysia |
LexisNexis |
3 |
|
Ireland |
LexisNexis |
2 |
|
Korea |
WestLaw |
1 |
|
Namibia |
www.saflii.org/cgi-bin/search.pl |
1 |
Amazing. But I’m bit skeptical about the numbers (I speak for only Indian cases). Some of them have mere passing references to fair dealing and nothing significant for the country’s highest court. Would be great if we can make summaries of these decisions and maybe publish them on Wikipedia as well. I volunteer!
Amazing. But I’m bit skeptical about the numbers (I speak for only Indian cases). Some of them have mere passing references to fair dealing and nothing significant from the country’s highest court. Would be great if we can make summaries of these decisions and maybe publish them on Wikipedia as well. I volunteer!
You are correct that some of the cases may have just passing references to fair use or fair dealing, but those passing references could provide some guidance to judges. More importantly, if even only one quarter of the decisions have meaningful discussions of fair use or fair dealing, that would still yield 485 open-ended fair use/fair dealing opinions and 202 traditional fair dealing opinions. That’s a lot of guidance!