What Are the Differences Between Fair Use and Fair Dealing?

The fair use concept is an element of copyright law in the United States, and fair dealing rules exist in other countries. Find out what these two terms mean and how they pertain to copyrighted works.

Copyright protections are obtained by a person who makes an original creative work, such as a book, music, film, or image, as soon as the work is fixed in a physical medium, such as paper, CD, or data file. With one exception: under the defense of fair use, no one else can use the work without first obtaining permission from the copyright owner. The fair use doctrine in the United States provides the unauthorised use of copyrighted works in certain situations, such as education, parody, and news reporting.

Other nations have a similar provision known as fair dealing, which allows copyrighted content to be used without a permission. In the United States, the doctrine of fair dealing does not apply.

Canada, the United Kingdom, Australia, New Zealand, Singapore, India, and other nations all have their own regulations about what constitutes fair dealing when utilizing copyrighted work, so make sure to check the laws of the country you’re dealing with. When employing works with copyright protection in the United States, you do not need to consider fair dealing. If you wish to utilize a work that is copyrighted in another nation, you must first learn about the laws of that country. This is a common occurrence for social media users.

Exception to the Fair Use Doctrine

In the United States, the fair use doctrine, which is part of the Copyright Act of 1976, is an exemption to copyright law and absolute ownership of copyrighted work. The concept allows others to use the copyrighted work or sections of it without authorization in certain circumstances to foster freedom of expression. When deciding whether a specific use is fair use, a number of considerations are taken into account:

• The purpose and character of the use, in particular whether the use is of a commercial nature or for nonprofit educational purposes; the latter is more likely to be deemed fair use than the former.
• Whether the use is “transformative,” meaning the work has been altered in some way that adds something new and valuable, rather than used as is. Examples of transformative use include parody.
• The nature of the copyrighted work. Quotes from works that are educational in nature, such as an article from an academic journal, are more likely to support a fair use claim than creative works, such as novels, because the dissemination of factual information benefits the public and copyright protections focus on encouraging creative expression. Use of an unpublished work is less likely to be considered fair than a work that has been published.
• The amount and substantiality of the work used in proportion to the work as a whole. A court can look at both the quantity and quality of usage when determining the validity of a fair use defense. For example, it might be reasonable to include a paragraph from a novel but not from a short story.
• The effect of the use on the current or potential market or value for the original work. If the unlicensed use of the work could deprive the owner of income, then it is less likely to be considered fair use.

The criteria of fair dealing rules are similar, yet they vary between nation.