Fair use, or fair dealing, that is the question.
An opinion completed as a requirement for Law 404: Intellectual Property
Should New Zealand reform the Copyright Act 1994 to incorporate a broader, more flexible “fair use” exception to copyright infringement based on the United States (US) model?
The starting point in answering this question is to determine the purpose of copyright law and the role of fair use or fair dealing within that law.
Copyright in common law jurisdictions originated as a protection for authors under the Statute of Anne 1710 and focused solely on the rights of copyright owners. The courts quickly recognised that some circumstances justified reproduction of protected works and over time developed protections, including fair use, for other publishers and the public interest. The common law doctrine of fair use evolved into the more restrictive statutory exception of fair dealing in the United Kingdom while broader fair use exceptions were retained in US statute. [1]
Public property and users’ rights
The principle in the statement “The ideas are public property, the literary work is his own”[2] describes well the so-called ‘idea-expression dichotomy’ of copyright protection and identifies the intention of protecting the public interest in a copyright work.
A recent Supreme Court of Canada finding has stated the purpose of copyright law is to “balance the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.”[3] New Zealand’s copyright statute has evolved along similar lines to those in Canada and other Commonwealth jurisdictions and the interpretation in this decision can be seen as a high water mark in the recognition of copyright users’ rights in these jurisdictions. McLachlin CJ defined the exceptions to copyright as “more properly understood as users’ rights”,[4] nicely signposting a wider interpretation sympathetic to the US fair use approach.
Commentary on copyright reform outlines two differing approaches to balancing users’ rights with owners’ rights. The first, the approach in New Zealand and other Commonwealth countries, is to create an exhaustive schedule of specifically defined exceptions that define the boundaries for copyright protection. The alternative, as in the US, is to provide a general fair use defence with a non-exhaustive list of uses that may constitute fair use such as criticism, comment and research. One advantage of the US approach is that courts are able to find that a use is fair even though it falls outside the list of examples.[5]
There are parallels between the factors considered in determining fair use and those for fair dealing, with the major discrepancy between approaches being whether a use or dealing falls within potential categories or fixed categories respectively. [6]
One analysis of the fair dealing doctrine finds that a restrictive approach to exceptions puts too much emphasis on creators’ and owners’ rights at the expense of users’ rights, with a conclusion that freedom of expression and creativity building upon the work of previous authors is undermined.[7]
The non-prescriptive approach to what constitutes fair use is thought to be more flexible and enables the doctrine’s purpose of allowing “breathing space within the confines of copyright”.[8] The alternative argument is that the prescriptive approach provides certainty for both creators and users.[9] Uncertainty compounded by the lack of precedent has been considered a factor against reform in New Zealand.[10] However, it is equally arguable the lack of precedent in New Zealand under the current law makes an equally valid case for reform with potential for a fair use index based on the US model[11] providing certainty for both owners and users.
Lack of precedent is specifically addressed in a recent Australian report advocating immediate imposition of fair use exceptions, the recommendation being to provide “a range of illustrative purposes, coupled with a proposed objects clause” to reduce uncertainty.[12]
The obvious difficulty with New Zealand continuing to maintain the ‘exhaustive schedule’ approach is the need to be constantly playing catch-up with user behaviour and the almost inevitable failure to foresee technological advances and how they impact both users and creators.[13] However, recent commentary proposes that a legislature “supported by properly resourced and sufficiently expert policy analysts” could arrive at suitable defences and exceptions as the need arises.[14] It is questionable whether satisfying both requirements in this statement is possible.
Conclusion
This article has made no attempt to explore the impact of fair dealing on Treaty of Waitangi considerations or freedom of expression under the New Zealand Bill of Rights Act 1990. If however, as argued above, the purposes of exceptions to copyright law are to preserve the public property aspect of copyrighted works and to balance users’ rights with creators’ rights then reform to implement the fair use approach will have two related outcomes.
Firstly, at a fundamental level, the removal of a limiting schedule of exceptions through implementation of fair use provisions must better resolve the issue of whether the Copyright Act places “reasonable limits… as can be demonstrably justified in a free and democratic society.” Secondly, a more integrated fair use defence would provide better protection of Treaty of Waitangi rights, as necessary, for both creators and users.
In short, New Zealand should adopt fair use.
[1] Carys J Craig Copyright, Communication and Culture: Towards a Relational Theory of Copyright Law (Edward Elgar, Gloucestershire, 2011) at ch 6.2.1.
[2] Moreau v St Vincent [1950] Ex CR 198 at [8].
[3] CCH Canadian Ltd v Law Society of Upper Canada 2004 SCC 13, [2004] 1 SCR 399 at [23].
[4] At [12].
[5] Robert Burrell and Allison Coleman Copyright Exceptions: The Digital Impact (Cambridge University Press, Cambridge, 2005) at 249.
[6] Compare the factors in Copyright Act 1994 subs 43(3)(a), (b), (d) and (e) with Copyright Act 17 USC § 107, as discussed in Jo Oliver “Copyright, Fair Dealing and Freedom of Expression” (2000) 19 NZULR 89 at 103.
[7] Craig, above at n 1, at ch 6.3.4.
[8] Campbell v Acuff-Rose Music Inc 510 US 569, 114 S Ct 1164 (1994) at [579].
[9] Burrell and Coleman, above at n 5, at 251.
[10] Paul Sumpter Intellectual Property Law: Principles in Practice (2nd Ed, CCH New Zealand, Auckland, 2013) at 112.
[11] www.copyright.gov/fair-use/fair-index.html.
[12] Australian Government Productivity Commission Intellectual Property Arrangements (Draft Report, April 2016) at 121.
[13] See also Craig, above at n 1, at 175.
[14] Graeme W Austin “The Two Faces of Fair Use” (2012) 25 NZULR 285 at 317.