Quote:
Originally Posted by BookCat
Would you mind giving a brief summary please, some of us don't want to wade through the legalese.
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Nitty gritty:
Fair use allows you to do pretty much anything (reference, extract quotes, analyze the text, index it) that doesn't unduly devalue the property rights of the creator when weighed against the common good.
Fair dealing only allows you to do those very specific things that a law says you can. If it isn't listed in a pre-existing law, you can't legally do it.
More detailed:
The difference is rooted in the differences between legal systems--common law vs Napoleonic.
As pointed out in the article, the Authors Guild lawsuit against Google is a perfect example of the difference in outlook. The AG claimed that Google wasn't authorized by any law or contract to scan, index, and dynamically extract short quotes via computer. Google's defense was "we don't need permission. We're not presenting or distributing copies of the books, merely quoting small pieces so people can more easily find relevant books."
The Court (eventually) came to the conclusion that Google's effort was legal because they merely computerized a pre-existing practice that was known to be legal. The precedent that reviewers or scholars quoting chunks of text is Fair Use was deemed close enough to what Google was doing via automation to render it legal. Under Common Law precedents, automating a legal process doesn't make it illegal. It still took over a decade to fight it out in court and sort out the nuances.
Under Fair Dealing it would have been a lot simpler: without a law saying Google could scan the books it would have been illegal to even try. Google would have first had to beg (or bribe) Congress to pass a law permitting them to scan the books. There still would've been ten years (or more) of fighting but nothing could be done over those ten years.
Another example is ebook pricing: in the US an ebook has always been considered just another publishing format and taxed (if at all) the same as any other product. In the EU it is (still) considered a digital service and taxed like software until laws are passed allowing equal treatment. Which may or not happen. The recent directive from the EU merely ssys the countries will be permitted to tax ebooks the same as print. Not that they have to. The new laws might get blocked.
Fair Use is seen as a more flexible and faster mechanism to deal with IP rights debates. Not all disputes take ten years. Many are settled within months or laughed right out of court.
Different societies, different attitudes. And sometimes subtle differences add up over time.
The author of the article posits that the UK, freed of the obligation to adhere to Fair Dealing is now free to consider whether to remain under Fair Dealing or adopt (return?) to Fair Use doctrines.
I'm not sure whether he is right or not but the choice, if made, could make an impact. It's... interesting...