Jonathan Band and Jonathan Gerafi
Updated April 3, 2023 to reflect the new Copyright Act of Nigeria
Introduction
More than 40 countries with over one-third of the world’s population have fair use or fair dealing provisions in their copyright laws. These countries are in all regions of the world and at all levels of development. The broad diffusion of fair use and fair dealing indicates that there is no basis for preventing the more widespread adoption of these doctrines, with the benefits their flexibility brings to authors, publishers, consumers, technology companies, libraries, museums, educational institutions, and governments. This is particularly the case considering that the copyright laws in many “civil law” countries currently allow their courts to apply a specific exception in a specific case only if second and third steps of the Berne three-step-test are met. That is, the court may permit the use only if it determines that the use does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the rights holder. These steps are at least as abstract and difficult to apply as fair use or fair dealing.
Fair dealing was first developed by courts in England in the eighteenth century, and was codified in 1911. In the UK legislation, an exception to infringement was provided for fair dealing with a work for the purposes of “private study, research, criticism, review, or newspaper summary.” Fair dealing also became incorporated into copyright laws of the former British Imperial territories, now referred to as the Commonwealth countries. Over the past century, however, the fair dealing statutes have evolved in many of the Commonwealth countries. While in some countries fair dealing remains, as in the UK, restricted to the original purposes of the 1911 Act, in other countries these purposes have become a non-exclusive list of examples (see, e.g., Bahamas). In still other countries, legislatures have added factors a court must consider in determining fair dealing (see, e.g., Australia). Moreover, some countries have replaced the term “fair dealing” with “fair use” (see, e.g., Bangladesh). Thus, the fair dealing statutes in many countries have over time increasingly resembled the fair use statute in the United States. (Additionally, judicial interpretations of fair dealing in countries such as Canada are now similar to judicial interpretations of fair use in the United States.)
Fair use in the United States is attributed to Justice Story’s 1841 decision in Folsom v. Marsh, which was based on the English fair dealing case law. Congress codified fair use in the Copyright Act of 1976. Section 107 provides that fair use for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship and research is not an infringement of copyright. Section 107 then lists four factors that are to be included in the determination of whether the use made of a work in any particular case is a fair use. In other words, Section 107 sets forth non-exclusive purposes and non-exclusive factors for fair use. Although fair use is generally considered to be more flexible and open-ended than fair dealing, this, as discussed above, is no longer the case in many Commonwealth countries.
Countries that are not former British colonies, such as Taiwan and Korea, have also adopted fair use or fair dealing. Four former colonies, Botswana, Ghana, Lesotho, and Malawi, have replaced fair dealing with other exceptions. This handbook contains the fair use and fair dealing statutes we were able to identify. Please contact jband@policybandwidth.com if we missed any. The handbook does not include the many implementations of the exceptions for quotations and illustration in Article 10 of the Berne Convention, which refers to “fair practice.” Fair practice under Article 10 is a distinct concept from fair use or fair dealing. The handbook also does not include the myriad specific exceptions countries have enacted in addition to fair use or fair dealing. Finally, the handbook does not contain exceptions that appear to be inspired at least in part by fair use or fair dealing, but do not employ those terms.
