Fair dealing: to replace or reinstate?

Posted by Teresa Hackett, Copyright and Libraries Programme Manager, February 22, 2017

EIFL is participating in Fair Use/Fair Dealing Week, an annual celebration designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate success stories, and explain these doctrines. Over 40 countries around the world have fair use or fair dealing in their copyright laws. In this blog, Teresa Hackett, EIFL’s Copyright and Libraries Programme Manager, discusses the evolution of fair dealing in the copyright laws of five EIFL partner countries: Botswana, Ghana, Malawi, Lesotho, Myanmar and Uganda.

As governments around the world are seeking to reform copyright law so that it is fit for the digital age, interest in a flexible copyright exception that can respond quickly to changes in technology is at an all-time high.

The doctrines of ‘fair dealing’ and ‘fair use’ offer opportunities for such reform.

‘Fair dealing’, first developed by the English courts in the eighteenth century, is a general, flexible copyright exception that is now incorporated into copyright laws in the UK and into the laws of many former British colonies and overseas territories. In the US, fair dealing evolved into ‘fair use’ and was codified in the US Copyright Act of 1976. Fair use is generally considered more flexible and open-ended than fair dealing.

A common characteristic of fair use and fair dealing is that the determination of whether a use (or dealing) is fair depends on the particular circumstances of each case.

‘Fair use’ and ‘fair dealing’ typically co-exist alongside a set of specific copyright exceptions enabling the law to adapt more quickly to technological change or to accommodate uses not foreseen when the law was developed, such as text and data mining.

Several EIFL partner countries have fair dealing or fair use-type provisions in their copyright law, for example, Kenya, Myanmar, Namibia, Uganda, Zambia and Zimbabwe.

Other partner countries, such as Botswana, Ghana, Malawi and Lesotho have replaced fair dealing with other exceptions. In these countries, the legal mechanism to access copyright-protected works is through a set of specific exceptions for certain predetermined uses such as private study, education, and use by libraries and archives.

And while the concept of fair dealing may have gone from the laws, as we shall see, language on ‘fairness’ still prevails to some degree in the laws.

In what circumstances was fair dealing replaced? In light of recent debates, could fair dealing be re-introduced?

Botswana and Ghana: Fair dealing in the 1956 British Copyright Act

In Botswana and Ghana, the 1956 British Copyright Act continued to apply after independence.

Since the 1956 British Copyright Act included several references to fair dealing (five in total), in addition to special exceptions for the benefit of groups such as schools and libraries and archives, this meant that for many years the concept of fair dealing was technically part of the copyright system in both countries.

When Botswana gained its independence in 1966, the 1956 Act remained in force for over three decades. Following Botswana’s accession to international copyright agreements such as the World Trade Organization (WTO) Agreement On Trade-Related Aspects Of Intellectual Property Rights (TRIPS) in 1998, a new Copyright and Neighbouring Rights Act was adopted in 2000.

Although the 2000 Act permits ‘dealings with a work’ without the authorization of the copyright owner, the concept of ‘fair dealing’ does not appear to have been carried over. Instead the new law contains a range of specified uses (nine in total) including personal use, teaching and libraries and archives.

In addition two exceptions in the Botswana Act of 2000 - quotation and reproduction for teaching - became subject to ‘fair practice’, a concept introduced in 1967 into the Berne Convention for the Protection of Literary and Artistic Works of 1886, denoting an objective assessment of fairness to be developed by the courts in each country for free use of such works [1].

Ghana became independent in 1957 and adopted a new copyright Act in 1961. The new law simply replicated the provisions of the British Act, including those on fair dealing.

The 1961 Act was replaced in 1985. Just one reference to fair dealing was retained (concerning the reproduction of programme carrying signals). Twenty years later in 2005, when Ghana’s copyright law underwent the next revision, all references to fair dealing had disappeared.

Like in Botswana, exceptions for quotations and illustration in Ghana for teaching are subject to fair practice.

Malawi and Lesotho: Fair dealing in the British Copyright Act of 1911

In Malawi and Lesotho, the earlier British Copyright Act of 1911 prevailed until more recently.

While there are no specific library exceptions in the Copyright Act of 1911, it contains a broad fair dealing provision that states: “Any fair dealing with any work for the purposes of private study, research, criticism, review, or newspaper summary” shall not constitute an infringement of copyright.

Upon becoming independent in 1964, Malawi inherited the 1911 Act that remained in place until a new copyright law was enacted in 1989 [2].

The Copyright Act 1989 includes a range of permitted free uses of works such as personal and private use, schools and universities, and use by libraries and scientific institutions. There is no language on fair dealing in the 1989 Act.

Like in Botswana and Ghana, the standard of fair practice was introduced for some exceptions i.e. quotation, illustration for teaching and expressions of folklore.

In July 2016, a new Copyright Act was adopted by the Parliament in Malawi. At the time of writing, the Act is believed to be awaiting Presidential assent. Update: assent was given on 1st September 2016.

After independence in 1966, Lesotho similarly acquired the British Copyright Act 1911 that was in force until 1989 when a new copyright law was adopted.

The 1989 Copyright Order has a section called ‘Free Use’ that contains 11 permitted uses. The Order also sets out limitations (compulsory licences) to the rights of translation, reproduction and recording of musical works, and uses the standard of fair practice.

Fair use and the Tunis Model Law for Developing Countries – time for an update?

“Works of the mind are intended for widespread distribution in the world beyond territorial frontiers.” - Tunis Model Law for Developing Countries (1976)

The Malawi Copyright Act 1989 and the Lesotho Copyright Order 1989 are both inspired by the (portal.unesco.org/culture/en/files/31318/11866635053tunis_model_law_en-web.pdf/tunis_model_law_en-web.pdf) Tunis Model Law for Developing Countries published in 1976 by UNESCO and WIPO.

Section 7 of the Tunis Model Law on limitations and exceptions to rights is entitled ‘Fair use’. It contains eight exceptions supporting an array of social and public interest purposes including personal study, education and teaching, and freedom of expression. Libraries and educational institutions are afforded a broad scope in the model law that permits copies to be made "according to the needs of their activities".

The Committee of Governmental Experts who prepared the Tunis Model Law recognized the importance of “more flexible provisions, better adapted to the needs of developing countries” to facilitate “the creation of far-reaching and easy access as possible to knowledge” [3].

Since the objective of those who drafted the Tunis Model Law was to encourage flexibility and given the current focus on the need for flexibility to keep national laws up-to-date, the inclusion of a fair use provision in an updated Tunis Model Law [4] would seem like a sensible (and obvious) policy choice.

Fair dealing in Myanmar

In Myanmar the copyright law was enacted over a century ago in 1914 and is also based on the 1911 British Copyright Act. While the 1911 law is still on the statute books in Myanmar, in practice it is defunct. It does however mean that, in theory at least, Myanmar has fair dealing.

Currently copyright is one of many laws being replaced as Myanmar undergoes rapid political, social and economic development after more 50 years of political isolation.

In 2015, the new draft copyright law was published for public comment. The draft text contains a set of ten exceptions for a range of uses including persons with disabilities, libraries and archives, news of the day and computer programs.

In written comments on the draft law EIFL, together with the Myanmar Library Association (MLA), recommended that fair dealing be included in the new draft law in order to provide, along with purpose-specific exceptions, a robust framework for access to copyright-protected content that will serve Myanmar well into the future.

Could fair dealing be re-introduced into copyright laws?

Historically fair dealing was a concept inherited from the British during the colonial period. As we have seen, fair dealing in some countries was replaced by other specific exceptions as laws were replaced or amended.

In other countries, fair dealing statutes have evolved. For example, in 2006 Uganda expanded fair dealing in its new Copyright Act. Section 15 of 2006 Act is headed ‘Fair use of works protected by copyright’ and introduces increased flexibility for the use of copyright-protected works [5]. Other countries that are not former British colonies, such as Taiwan and Korea, have newly adopted fair use or fair dealing.

So could the concept of fair dealing be re-introduced into copyright laws? Yes, we believe it could easily be incorporated. In particular the introduction of the concept of fair practice, in which courts decide on the merits of a case according to the individual circumstances, into the laws of several countries, provides a firm foundation for the creation of a flexible, open norm that is currently used in more than 40 countries around the world.