So what’s the deal with fair dealing?

These are my views and not those of my employer, or of projects and programmes I am responsible for. This post is available under a creative commons CC-BY license. I am not a lawyer or a legal expert, the post below reflects my interpretation of the law as I understand it, based on openly available materials.

A few people are starting to question why we need creative commons licensing for resources when we have fair use and fair dealing exemptions for education and research in most IPR systems globally. Here’s why:

1. Fair use/fair dealing rights vary from jurisdiction to jurisdiction.

Creative Commons is global, with teams of localised experts ensuring that the licenses are re-presented in language suitable for many jurisdictions. Using something under the terms of a CC license is the same in Boston, MA as it is in Boston, Lincolnshire. But “fair use” (the US terminology) for educational reasons is very different from “fair dealing” (the UK terminology) – fair dealing is much more restricted in the UK with much less scope for argument (an issue I’ll come to later).

In the UK, fair dealing rights are set out under the 1988 Copyright Designs and Patents Act. You have rights to use an “excerpt” of a copyright work for non-commercial research or private study, criticism and review or news reporting. You’ll note that none of these are defined precisely – those of you attending #OER11 will hear me speak about an example where a non-commercial research exemption which seemed to me pretty watertight was successfully challenged.

The web is global. Information is global. A jurisdiction-specific right is almost irrelevant in such a world
2. Fair use/fair dealing rights don’t allow for republishing or sharing.

Fair dealing allows for copies of excerpts of copyrighted works to be made for educational purposes by a librarian, tutor or student, for use by a known student or group of students. If you want to show your awesome materials to prospective students, you (legally) can’t. If you want to share slides with the woman you share your office with, you (legally) can’t. If you want to build something on top of data that is used under “fair dealing”, you (legally) can’t. And as implied above, if you want to use materials made by that guy from Michigan you met at that conference, you (legally) can’t. 

3. Fair use/fair dealing rights are legally arguable, CC licenses are clear and unarguable.

This for me is key – fair dealing isn’t something that keeps you out of court, it’s an argument you can use in court to stop yourself being fined for breaching copyright. It’s not a watertight defence, there are (intentional) grey areas an in the end it will all come down to the interpretation of a judge. You’ll be very unlikely to get to a stage where you can argue fair use – and there’s no financial legal aid for doing so. You or your institution will pay to make this argument. You are more likely to settle out of court with a publisher who has serious money and can afford to keep taking you to court until you give them more. Fair dealing is an occasionally valid excuse for copyright infringement – it does not mean that you are exempt from copyright law, and does not grant you the range of tangible rights that a license does.

There are very few examples of creative commons case law – this is because creative commons licenses are pretty much unarguable. They are clear, unambiguous user-friendly and well written. It’s not worth the bother of even going to court with a CC license, you know the license will be upheld.

Here’s a lovely UK summary of fair dealing produced by the UK Copyright Service and made available under a Creative Commons license, which I think is rather telling.

But this comes down to my interpretation. If people are going to talk about fair use/fair dealing as an alternative to creative commons at the very least we all need to learn more about it. I’d love a response from a real law person.

And here is a response from a real law person – Naomi Korn at OER IPR support.  Thanks Naomi!

Leave a Reply

Your email address will not be published. Required fields are marked *