Fair use and fair dealing: What you need to know

‍‍Fair use is a doctrine of law that allows copyrighted material to be used without license when it is in the public interest. Laws surrounding fair use vary between jurisdictions; in the US, for example, the rules are quite different from those in Commonwealth countries (where it’s known as fair dealing), which in turn have their own interpretations and precedents.

That said, fair use is generally highly restricted to a small number of specific use cases, such as in news reporting, education, or satire. These categories aim to balance the exclusive rights of the copyright owner with limited types of uses that serve the public sphere. While the boundaries for what constitutes fair use come down to how a court interprets a case, the term is often misunderstood and incorrectly cited as justification by copyright infringers and users of unauthorized images.

We’ve put together this article to clarify what fair use (and fair dealing) is -- and what it isn’t -- and how laws and interpretations vary between countries.

Common fair use aspects across jurisdictions

Before we dive into the details for different jurisdictions, it’s worth pointing out a few common elements of fair use in the US and Commonwealth countries.

1. Criticism or review: When an image is used for criticism or review purposes, the use needs to involve actual commentary or critique of the source material. Posting the content alone with no analysis of the work would not be considered fair dealing.
2. News reporting: Fair dealing for news reporting relates to informational news content on current events and matters of public interest. If an article does not relate to a current event where it’s in the civic interest for people to be aware, the case may not be considered fair use.
3. Education: When an image is used for research or study purposes, the accompanying written content needs to clearly relate to the act of educating someone. So, for example, if an education institution uses an image to promote their courses or services, this wouldn’t fall under fair use or fair dealing for education purposes.

Fair use in the US

Interpretation of fair use in the US has been an important issue for creatives following the overturning of the Brammer v Violent Hues decision. There’s more detail on the role of Pixsy’s legal partners in that case here.

‍Section 107 of title 17 of the US Code lists the potential fair use cases as follows: criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. The courts also use that section to make an assessment of fair use based on these four factors:

(i) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (this is sometimes referred to as the transformative factor, based on a 1994 case considered by the Supreme Court)

(ii) the nature of the copyrighted work;

(iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and(iv) the effect of the use upon the potential market for or value of the copyrighted work

Though all four factors are considered in determining if fair use applies, the first factor is the most important. If, for instance, the website where the image is used displays products or services for sale, this would not meet the first factor of fair use.

Transformative use refers to adding expression or meaning by engaging in parody or commentary. If the image is used in full rather than just a portion of the work, it is less likely to be viewed as fair use. Case in point: Netflix’s use of photographer Sean Heavey’s image for the promotion of a Stranger Things production.

Fair dealing in Commonwealth countries

For jurisdictions like the UK, Canada, and Australia, fair dealing categories are exhaustive and clearly defined. In other words, their legislation specifically prescribes fair dealing categories, and a use must clearly fit within one of those categories to be considered fair by the courts.

The categories focus on activities that serve the public interest, rather than commercial interests, and primarily relate to research, study, news reporting, criticism, review, parody and satire. In many cases, users are still required to credit the creator of the work to ensure that their moral rights as the author are maintained.

Some courts and government bodies for intellectual property in Canada, the UK, and Australia have their own factors to assess whether a use is fair. Before a judgement is made, however, the very first step is to check if the use fits in a fair dealing exception category. If a use does not fit into any of those categories, it cannot be considered fair use.

UK

The UK’s Copyright, Design and Patents Act (1988) outlines specific fair dealing exceptions under the following categories: research and private study, text and data analysis for non-commercial research, criticism, review, quotation and news reporting, caricature, parody or pastiche. In addition, for use to be considered fair, the original source of the material must have “sufficient acknowledgment”.

Importantly, however, the exception for news reporting does not apply to photographic work. News providers cannot use a photograph without permission and claim fair use. As in the US, for fair use to apply in the education category, the material must not be used for commercial purposes. In addition, the work must be copied by the student or individual providing the instruction (i.e. not by a third party).

According to the UK’s Intellectual Property Office, “There is no statutory definition of fair dealing - it will always be a matter of fact, degree and impression in each case.” In order to ascertain whether a case is fair use, the following questions are applied:

• Does using the work affect the market for the original work? (If a use of a work acts as a substitute for it, causing the owner to lose revenue, then it is not likely to be fair.)
• Is the amount of the work taken reasonable and appropriate?
• Was it necessary to use the amount that was taken? (Usually only part of a work may be used.)

Canada

According to Canada’s Copyright Act, fair dealing exceptions fall under the categories of research, private study, education, parody, satire, news reporting, criticism or review. In a 2004 case, the Supreme Court defined factors to interpret these categories: purpose, character, amount, nature, alternatives, and effect of the dealing on the work. If material is used for criticism, review, or news reporting, you must attribute the source and author of the work to be considered under fair dealing. This flowchart by the University of Waterloo provides a useful reference to check whether the use of copyrighted material would constitute fair dealing.

Australia

In Australia, the Copyright Act 1968 defines the categories for fair use exceptions as research or study, criticism or review, parody or satire, reporting news, for judicial proceedings or a legal practitioner or attorney giving professional advice. Fair dealing access for people with disability is also covered after the Act was updated to reflect the Marrakesh Treaty. Like in other jurisdictions, Australia’s Copyright Act states that there needs to be “sufficient acknowledgement” of the work in news reporting to be considered fair dealing.The courts apply these factors to ascertain fair dealing on a case by case basis:

• The purpose and character of the use, including whether the use is commercial in nature
• The type of work used
• The possibility of obtaining a license at a reasonable time at an ordinary commercial price
• The effect of use upon the potential market or value of the work
• The amount and substantiality of the part copied
• Whether attribution has been given to the original author

Summary

While fair use exists to balance the rights of copyright owners and the wider public, the factors are clearly complex, and much more limited than many people believe. Ultimately, only a court can decide whether a fair use or fair dealing defense can be applied in a particular case. If a court decides that fair use or fair dealing does not apply, the penalties for copyright infringement can be extremely costly.

‍The best way to ensure you’re respecting a creator’s copyright is to contact them to seek permission and clarify any terms prior to using their work.