BY RICHARD WHITE

1. “A Fair Minded and Honest Person.”

Ever wondered if that photo you got from Google images for a slideshow was a breach of copyright? Or the video you downloaded off the One News web site and emailed to your parents? There’s a good chance it was, unless you can argue that your use was fair dealing. While the US concept of fair use is probably the more widely known term, in NZ we have a similar thing known as fair dealing.

You’ve no doubt been greedily consuming the tasty morsels offered up on NZ Commons already and, in doing so, you may well have seen fair dealing in action in Thomas Huthwaite’s ‘When is an artistic work not original?’ He explicitly says — and trust a lawyer to do this — that his copying of several images is allowed under the NZ Copyright Act as fair dealing for the purposes of criticism and review. He’s bang on: without it he’d be breaching copyright in a piece about copyright breaches.

Essentially, fair dealing exists to balance your rights as a consumer of cultural works against the limited monopoly granted by law to the creators or publishers of those works. Copyright gives rights holders the exclusive right to copy, share, adapt or perform their work; fair dealing is one of the exceptions in the Act that allows you to use those works in certain ways. Whether you’re writing a high school essay, putting a book review on your blog or doing the literature review for your PhD, fair dealing is what allows you to copy parts of others’ works without gaining the permission of the rights holder.

Reference: "Judges - First Appellate Division - May 1923" by Law Society of Upper Canada. Copyright: No known copyright

Reference: “Judges – First Appellate Division – May 1923” by Law Society of Upper Canada. Copyright: No known copyright

In the digital age probably every one of us is copying someone else’s work every day without seeking permission, but there aren’t that many lawsuits around accusing people of breaching copyright. So who decides what is fair? Well, the Act provides some guidance (see below) but it’s case law that guides us in interpreting the Act.

The only problem is there is almost no case law involving fair dealing in NZ. In a 2002 case in Australia, a judge made this remark: “Fair dealing involves questions of degree and impression; it is to be judged by the criterion of a fair minded and honest person, and is an abstract concept.”

Similar comments have been made elsewhere. Now, you might be on the verge of spotting a difficulty here. In a world that has both John Banks and Winston Peters in it, working out what a fair minded and honest person thinks is probably going to take some time.

2. The Fair Dealing Exceptions

If your purpose is research and private study you can make a single copy from a work, as long as the copying is fair. Paraphrasing the fancy language of the Act, what is fair depends on things like:

  • the reason you were copying the work;
  • the nature of the work itself;
  • whether you could have bought it;
  • whether the copying would affect the market for it; and
  • the amount copied in relation to the whole (there’s no magic 10% or allowable number of pages).

So, copying a chapter or section of a book would be far more fair than a bigger proportion, especially where you could just purchase your own copy. Copying would be more fair if you were using something no longer (or never) available commercially with a view producing a work of your own that placed the copied work in a much broader context. The key point here is that your copying must be for a purpose that informs your own research and private study; you can’t publish any copies you make under this provision, unless…

You can claim fair dealing with a work for the purposes of criticism, review and news reporting, provided there is sufficient acknowledgement, i.e. identifying the author/source and date of the work. Unlike research/private study, you can make multiple copies. The ‘fairness’ or otherwise of any copying for criticism or review would be determined according to similar factors as those listed under research or private study above.

Thomas Huthwaite’s piece is a good example: he uses low resolution copies of the works he is reviewing and provides a commentary on the legal implications of derivative works that borrow heavily from originals. Another good example is this post on the Auckland Libraries’ Heritage & Research blog: while it uses images from the covers of School Journals that are works by famous NZ artists, where the copyright will either be held by the artist or his or her estate or by the Ministry of Education (depending on whatever agreement was made at the time), the purpose is clearly to illustrate how a sense of nationhood is expressed through the works; the images are low resolution and so wouldn’t be suitable for commercial reproduction; and there is no commercial gain for the library or loss for the artist.

It’s worth noting that the fair dealing defence here only allows their copying for their purpose; it doesn’t allow anyone else to make further copies from their copies unless the next person can also claim fair dealing with the works. It’s still possible for a rights holder to challenge any use of his or her work of course as unfair. It’s all in the eye of the beholder — and if the beholders can’t agree, then it’s down to the courts.

This provision also covers reporting of news and current events, though this specifically excludes photographs.

3. The Limits of Fair Dealing

What doesn’t fair dealing cover?  NZ law does not include a fair dealing exception for educational use because education has its own section in the Act. So you can’t argue that a particular use in the classroom is fair dealing, unless you’re critiquing/reviewing the work in some way of course; but to make, say, multiple copies of a chapter of a book you need to use one of the educational provisions that cover multiple copying, obtain a licence or get permission from the rights holder. Nor do we have a provision for parody and satire. You’d have to argue that you were critiquing the work if someone challenged your use as a breach of copyright.

From the above we can see that NZ copyright law spells out very specifically the purposes for which you could argue that your use of something is fair dealing with a copyright work. This is the same in the UK, Canada, Australia and many other countries. And this inflexibility is what has led many of these countries to debate whether adopting a more flexible US-style fair use framework would be better to encourage innovation and economic growth — and just to allow what most of us would consider everyday acts in the digital age. But that’s a topic for another post…

To go back to the question in the title: who decides what is fair? In a very real sense it is you and me.  Our approach,  certainly in the educational sector, has been very conservative.  Consider the official advice the Library & Information Association of NZ gives to graduate research students: brief quotes are OK but be wary of any graph, table, diagram, excerpts from video, sound recordings, etc. “Students should always obtain prior permission from copyright owners where there is any doubt regarding the legality of including in-copyright materials in theses.”

It’s time to challenge this risk-averse approach. Our National Library is taking a lead, with its new collection and reuse policy. And we can do this as individuals and institutions too. Take care and respect copyright but, as should be plain from the examples in this piece, you can take the role of the fair-minded and honest person and make your own judgement based on the purpose and nature of your use as to whether what you’re doing is fair.

Richard White is the Copyright Officer at the University of Otago. He blogs at Open Otago. He is also a musician who releases his work under CC BY-SA. You can listen to Richard’s music at his Soundcloud page and follow him on Twitter @rkawhite

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