Fair Use vs Fair Dealing and... Brexit?

[fjtorres]

From THE BOOKSELLER:

http://www.thebookseller.com/blogs/c...-brexit-394481

An international publishing industry can only function in those markets and territories that broadly play by the same rules. That means countries adopting aligned copyright systems that not only protect their own citizens, but crucially provide the same recognition to works written by foreign nationals.

Fair use versus fair dealing

Since 1886, the primary legal means of achieving this has been the Berne Convention, which established the global copyright norms we know today. Unlike the Treaty of Rome which founded the EU, this time the UK did turn up, and that gave us a significant degree of influence in the system that emerged. Overall, the Berne Convention has been a remarkable success. However, as with all international treaties, the negotiations were fraught. Tensions arose particularly between the French-led desire for a model centred around the moral rights of the author and the Anglo-Saxon common law model, which sees copyright as a property right that facilitates a sound and effective marketplace for copyright works. The compromises were too much for some, with the US deciding to remain outside of the Berne framework until as recently as 1988.

One of the main reasons the US did so was its desire to protect its system of Fair Use against potential erosion by Berne rules promoting the narrower exception of Fair Dealing. The difference can seem subtle, but it’s important. Broadly speaking, Fair Use allows copyright works to be used without the prior permission of the rights-holder, so long as that use is in the wider interests of the public at large (factors include whether the use is educational and/or “transformative”). This was Google’s defence in the case brought by the Authors Guild. The doctrine is now increasingly seen by many common law countries (Canada, South Africa, Australia, Singapore and Hong Kong) as a solution to the demands for a more flexible copyright regime for digital works.

Fair Dealing provides for a much more limited and tightly defined set of exceptions. This model adheres more tightly to Berne and is enshrined in the EU Copyright Directive, which contains a closed list of specific exceptions that member states can adopt. When taken alongside the EU’s introduction of a special right to protect databases, and other recent policy discussions at EU level about the Digital Single Market (which, thanks to effective lobbying from the UK Publishers Association and the Federation of European Publishers, looks like resulting in a good outcome for publishers), many view the EU as currently being a very a pro-rights-holder environment.

New relationships

Sitting squarely in the middle is the UK. As an EU member state our common law copyright model has evolved to become closer to Authors Right. But as the lone common law voice in the EU, that journey hasn’t been easy. Which regime is better for the UK author and publishing community? Well, for most of us, the instinctive answer is the EU, particularly for academic and educational publishers who would (rightly) be wary of Fair Use models which include broader educational exceptions. But in truth the picture is more complex. For example, many authors supporting Open Access publishing models and creative commons licensing are also ardent supporters of Fair Use. As are many of our customers and technology partners.

Whether Brexit brings about change remains to be seen, but three things seem clear. Firstly, an international author and publisher community cannot exist without a broadly aligned international copyright system. Secondly, the international consensus around copyright exceptions is creaking (particularly around educational use), with a key fault line emerging between the EU and the common law countries. Thirdly, and resultantly, as the UK government seeks to realign its economic, legal and commercial relationships with both the EU and common law blocs, there is at the very least a policy choice to be made about what the UK’s copyright future should be and how much control we want to take back over shaping it.

More at the source.

[BookCat]

Would you mind giving a brief summary please, some of us don't want to wade through the legalese.

[crich70]

Originally Posted by BookCat

Would you mind giving a brief summary please, some of us don't want to wade through the legalese.

Fair use allows up to 10% of a work to be used without having to gain permission if I remember correctly. That usually applies to longer books rather than songs or short poems which are fairly short to start with. So I could reference a book that you wrote on the history of cheese manufacturing for example while writing my own book about the state of Wisconsin (a big cheese making state) without having to obtain permission from you. On the other hand if you wrote a song about making cheese I would have to get your permission before including it in my book.

[pwalker8]

Given that their initial assertion is demonstrably false, i.e. publishing has not only function, but flourished for most of it's history in areas that did not play by the same copyright rules and did not extend that protection to works published outside their area, it's kind of hard to take the blog post seriously. What the author is basically saying is "We have a really sweet deal and don't want anything or anyone to upset the golden goose".

[fjtorres]

Originally Posted by BookCat

Would you mind giving a brief summary please, some of us don't want to wade through the legalese.

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...

[BookCat]

Thank you for clearing that up for me. I'm not sure how Brexit might affect Fair Use (something I know a tiny bit about because of my youtube vids sometimes being challenged on copyright grounds when I've used a small amount of music).
Do countries in the EU (apart from the UK) have the same copyright laws: death+70? Is this likely to change when we leave the EU?
Personally, I'm all for a total divorce from the EU (including the single market) but wasn't aware that it might affect ebooks in anyway. It would be great if ebooks weren't taxed, just as pbooks aren't.

[pwalker8]

Originally Posted by BookCat

Thank you for clearing that up for me. I'm not sure how Brexit might affect Fair Use (something I know a tiny bit about because of my youtube vids sometimes being challenged on copyright grounds when I've used a small amount of music).
Do countries in the EU (apart from the UK) have the same copyright laws: death+70? Is this likely to change when we leave the EU?
Personally, I'm all for a total divorce from the EU (including the single market) but wasn't aware that it might affect ebooks in anyway. It would be great if ebooks weren't taxed, just as pbooks aren't.

It doesn't actually. GB has always had their own copyright laws and has it's own fair dealings rules that are different than the US fair use rules or the rules that the EU wants in place. Most countries that signed the Berne Convention has copyright laws that are some form of life plus. In some cases life plus 50, in other cases life plus 70. I believe that the UK is a life plus 50 country.

[BookCat]

Unfortunately the UK is a life+70 country. If only it would change to life+50 which I think is enough, but that's getting off-thread.

[pwalker8]

Originally Posted by BookCat

Unfortunately the UK is a life+70 country. If only it would change to life+50 which I think is enough, but that's getting off-thread.

Ah, apparently it was extended in 95. Thanks for the correction.

[HarryT]

Originally Posted by BookCat

Thank you for clearing that up for me. I'm not sure how Brexit might affect Fair Use (something I know a tiny bit about because of my youtube vids sometimes being challenged on copyright grounds when I've used a small amount of music).

British copyright law does not have any concept of "fair use". As has been said, what it has instead is what's called "fair dealing", but this allows you to use copyrighted material without the copyright holder's permission in only three very specific situations:

• For private study or research.
• For academic criticism or review.
• For news reporting of current events.

Unless your Youtube videos are using copyrighted music for one of these three purposes, I'm afraid it's very likely that you are breaking the law.

The government has a page of advice on the matter at:

https://www.gov.uk/guidance/exceptions-to-copyright

[BookCat]

@Harry, that's interesting, one of my vids (of cats) was challenged because of copyright due to some music which went with it. The video was muted for a while until someone commented that I could get the ban lifted. Via pm, he told me in detail how to do this. At the time (a few years ago) it was possible to challenge a copyright ban on the grounds of fair use and I think this is what I did. Anyway, the mute was lifted.

Maybe youtube are based somewhere where fair use exists? I don't know which country's laws they are subject to.

If anyone is interested, I'm 'muskndusk' on youtube. These days I just make asmr relaxation videos. I'm not advertising my vids by the way, none of them are monetised, just thought I'd mention this in case you want to check that none of them are muted.

A little off thread, maybe ...

[pwalker8]

Originally Posted by BookCat

@Harry, that's interesting, one of my vids (of cats) was challenged because of copyright due to some music which went with it. The video was muted for a while until someone commented that I could get the ban lifted. Via pm, he told me in detail how to do this. At the time (a few years ago) it was possible to challenge a copyright ban on the grounds of fair use and I think this is what I did. Anyway, the mute was lifted.

Maybe youtube are based somewhere where fair use exists? I don't know which country's laws they are subject to.

If anyone is interested, I'm 'muskndusk' on youtube. These days I just make asmr relaxation videos. I'm not advertising my vids by the way, none of them are monetised, just thought I'd mention this in case you want to check that none of them are muted.

A little off thread, maybe ...

youTube is a US company, so it's based on fair use, which can include using clips of music in the back ground as long as it's non commercial.