Fair+Use+Fair+Dealing

toc [|Fair Use] (US) and Fair Dealing (Canada) are legislations that limit the exclusive use of a creative work. Copyrightable works include literary works, musical works, dramatic works, choregraphic works, pictorial, graphic and sculptual works, motion pictures, sound recordings and architectural works. The main difference between the two is that Fair Use in the States is more leniant in the sense that judges are able to decide on a case by case basis in regards to numerous tests that concern fair use status when dealing with copyright infringement cases. Fair Dealing in Canada, judges are restricted in their judging and have to follow strict Fair Dealing guidelines.

=The Differences between Fair Use and Fair Dealing=

In the United States the term 'Fair Use' is employed, and in Canada 'Fair Dealing' is employed.The United States and Canada have different rules governing these doctrines.The concept of fair dealing is somewhat different from the US concept of fair use. The US concept is much broader and captures more users of copyright materials, such as criticism, comments, news reporting, teaching or research. One of the major differences between fair dealing and fair use is educational use. It is not specifically mentioned in fair dealing and is specifically referred to in fair use as teaching, including multiple copies for classroom use (Lyman 25). Similar to the fair use doctrine of United States copyright law, fair dealing in Canada is not seen as an infringement at all.

Fair Use
The fair use doctrine places restrictions on owners' monopoly over his/her copyrighted works. To determine whether the purpose is a case of fair use the following are the factors set out by the Copyright Act: The court believes that the purpose of use should benefit the society in various ways that it's granted to have access to copyrighted materials without requesting permission from the owner. However, not all educational and non-profit uses are considered to be fair use, it which some of them are expecting profits from it. Therefore, users should be aware of some of the limitations on the fair use doctrine even though it's for educational and non-profit uses. Fair Use is more flexible than fair dealing.
 * "the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes (U.S. Copyright Office – Fair Use);”
 * "the nature of the copyrighted work informational or factual."
 * "the amount and substantiality of the copyright material in relation to the copyright work as a whole"
 * "the impact of the use on potential market value of the copyrighted work"

Fair Dealing
'Fair dealing' has six main principles that act as ground rules that are examined on a case-by-case basis by a Canadian court official to determine whether or not the case in question should receive a 'fair dealing' verdict: Digitization has affected the fair use defense in a negative way because people can access material for free and use the fair use as their defense. With this defense one can claim that he or she is using the material for their own personal use. Thus with greater accessibility to the internet, fair use can be used by millions of people. With up and coming new technology it is much more difficult to maintain copyrighted material because technology allows the “have nots” the ability to “have”. We are now experiencing a revolution in society. Therefore, the law will adapt itself because society needs the law of copyright to be protected not only in the physical realm but also in cyber space.
 * “the purpose of the dealing"
 * “the nature of the work”
 * “the amount of the dealing”
 * “the character of the dealing”
 * “effect of the dealing on the work”
 * “alternatives to the dealing”

=Fair Use Cases=

AGU v. Texaco
In October 1994, the [|AGU v. Texaco] case involved Texaco employees making copies of articles from journals. This was not considered fair use. In November of 1994, organizations filed a petition for reconsideration of the Court ruling. That petition was denied by the Court. In March 1995, Texaco announced its decision to appeal the case to the U.S. Supreme Court. ARL coordinated and disseminated information concerning the case and organized an amicus brief before the Supreme Court. The end result was that Texaco paid a seven figure settlement to the publishers in the dispute. This shows the importance of photocopying licenses.

Basic Books v. Kinko
To support the legal defense of fair use we can take a look at the Basic Books, Inc.v Kinko's Graphics Corp case [|Basic Books,Inc.v Kinko's Graphic Corp]. In this case Kinko's is providing "course packs" for a local college (Copyright and Fair Use). Kinko's defense was that the packages were for educational purposes although the motives were clearly to make a profit. It was evident that the infringing work competes in the same market as the copyrighted work, thus making the "commerciality" more harmful to the copyright holder (Copyright and Fair Use). The court found the portions copied by the defendant Kinko's not fair use of plaintiff's copyrights and therefore constitutes infringement. Plaintiff is granted statutory damages, as well as the responsibility of paying any legal fees

Blake Field v. Google
One case that's relevant to the fair use doctrine would be Blake Field filing lawsuit against [|Google] for performing the cache function of duplicating and saving his work that he uploaded on his webpage and sending it to other people. Blake Field is an author who publishes his works online. However, the court determined that the cache function offered by Google complies with the fair use doctrine. Google's defense was that they did not directly ingringe the copyright works, that they had implied license to reproduce and distribute copies of the copyright works. Field was reluctant to prevent such happenings and that the cached copies of his works were of fair use. This case reassures a lot of companies regarding the legal question of the cache function, in which a lot of them are heavy users of cache.

BMG Music v. Gonzalez
In the [|BMG Music v. Gonzalez] was case over copyright infringement of music by downloading and sharing MP3 music files. Gonzalez downloaded more than 1300 songs from the music software program ‘Kazaa.’ Her argument was fair use because she was "sampling" the music to see whether she wanted to purchase the CD or not. The Court was not persuaded by her arguments because she did not meet any of the four factors taken into consideration when conducting a case of fair use. The Court concluded her purpose was not for commercial use or established a nature of work because she did not delete the songs after deciding not to purchase them. The Court noted that the files she downloaded were a violation of the exclusive statutory rights of copyright laws.

Campbell v. Acuff-Rose
The fair use defense has been used in many cases over the past couple of years, even in the entertainment industry. Take for example the [|Campbell v. Acuff-Rose (1993)] case Roy Orbison and William Dees wrote a song called “Oh Pretty Woman.” Acuff Rose was assigned rights to the song and they are suing the members of the rap group 2 Live Crew claiming their song “Pretty Women” infringed “Oh Pretty Woman.” Although the lyrics were changed to suit their style of music the guitar sound was similar to the original. Interestingly, “in true Crew style, the music contains interposed scraper noises, overlays of solos in different keys, and an altered drum beat” (“2 Live Crew and Roy Orbison” 1995). After taking into consideration the four factors under the fair use test, the decision of the court was that the song was used for commercial gain. Besides this, the third factor of the amount of copyright compared to the original was too much, “taking the "heart" of the original and making it the "heart" of a new work, 2 Live Crew had, qualitatively, taken too much under the third factor” (“Campbell v. Acuff-Rose Music” 1994). Basically, the parody is not used to substitute the original work the versions were essentially used for different markets so the fair use defense could be used. In addition, the “court looked at the other factors of permissible fair use and determined that parody was indeed protected fair use, even though the perpetrators gained financially.” (“2 Live Crew and Roy Orbison” 1995).

=Fair Dealing Cases=

CCH Canadian Ltd. v. Law Society of Upper Canada
In the case of, [|CCH Canadian Ltd. v. Law Society of Upper Canada] (2004) exemplifies how a case can fall under fair dealing. The Law Society of Upper Canada was being sued for having photocopying access to researchers, students, and authorized individuals. In the Law Society’s defense they state, “the service they offer is necessary to providing equal access the library’s collection of legal materials. Many of the materials are non-circulating which makes access to the original copies difficult to those who do not work near-by” (“CCH Canadian Ltd. v. Law Society of Upper Canada” 2006). They were being sued by the three largest publishers for copyright infringement. The courts ruled that the Law Society did not infringe any copyright while photocopying in the library. One of the issues was whether the library infringed by having access to self-serve photocopies. “McLachlin dismissed this argument by stating that providing access did not suggest sufficient “authorization” to violate copyright. It is presumed that a patron with access to the machines would use them lawfully” (Murray 2006). The third question was whether this was considered fair dealing. The claimant must prove that the use was intended for research or private study. The courts found that the library was acting fairly, thus the fair dealing exception applied. This case demonstrates that using material for the purpose of education or just personal use is acceptable by law.

Heather Robertson v. Globe and Mail Case
One case that's relevant to the fair dealing doctrine would be [|HeatherRobertson] filing lawsuit against Globe and Mail for copyright infringement. Heather Robertson is a famous Canadian author who claimed her articles were being posted in the [|Globe and Mail's] database library for research purposes. However, the Globe and Mail claimed that under the Copyright Act, “the statute also contemplates the possibility of copyright being granted to a party that compilesexisting material and casts it in a unique manner. While that copyright holder does not hold copyright in the individual works that constitute the compilation, the collection itself benefits from copyright protection (ARMA International).” However, the court didn't make any further response towards this case, but this issue raises a concern towards fair dealing doctrine. Many copyright owners would beafraid of not being able to get compensated if the fair dealing doctrine reinforces the compilation copyright.

Kelly v. Arriba Soft Corporation
In the [|A. Kelly v. Arriba Soft Corporation] case courts had to figure out whether or not there was a violation of fair use. A. Kelly sued Arriba Soft Corporation including a list of thumbnail pictures owned by Kelly where potential users could click the thumbnail image and display it as full size images. The court took into consideration that Arriba Soft Corporations was using the thumbnail images for commercial or educational uses. The defendant’s purpose was not to be artistic but to be comprehensive. Therefore the court weighed in favour of fair use for the first factor because the defendants purpose was strictly commercial as were the other thumbnail images Arriba Soft Corporation provided on their search engine. The court concluded with the final factor, where the defendant argued no negative impact towards the Plaintiff because the images were on a search engine and was not competing with the Plaintiff’s web site. In fact it increased the amount of viewers to the Plaintiff’s site.

Recording Industry v. The People
In recent news, a Canadian record executive is helping a [|Texas family fight a lawsuit against RIAA] for uploading files. Terry McBride also has the support of artists such as Avril Lavigne, Sarah McLachlan and the Barenaked Ladies. His intentions are to “create a positive concrete conversation between the artists, their managers and the record labels as to what the future is.... The fan is the future. Suing the fan is like shooting yourself in the foot”(qtd. in Pacienza 2006). The [|RIAA] has executed copyright infringement lawsuits against many people. However, even the music artists feel that suing the fans is not the answer. There will always be the tension between rights of the industry versus the rights of the public.

=Worked Cited=

“2 Live Crew and Roy Orbison.” __Copyright Casebook__. 1995. <[|Source]>.

"Basic Books, Inc.B. Kinko's Graphics Corportation." Copyright and Faire Use. Standford University Libraries. 01 Feb. 2006. <[|Source]>.

“Campbell v. Acuff-Rose Music” __Supreme Court collection__. 1994. Cornell Law School. <[|Source]>.

“CCH Canadian Ltd. v. Law Society of Upper Canada.” __Wikipedia.__ 2006. Wikimedia Foundation, Inc. <[|Source]>.

Ferrera, Gerald, et al. __Cyberlaw: Text and Cases 2ed__. Ohio: Thomson, 2004.

Peter Lyman. __Study on New Media and Copyright__. Ottawa: Minister of Supplies and Services, 1994.

Mudge, S. Brian, and Thomas Huff. "The Napster Case." Aug. 2005, Kenyon & Kenyon, LLP. 31 Jan. 2006 <[|Source]>.

Unknown, Author. "U.S. Copyright Office - Fair Use." Dec. 2005, U.S. Copyright Office. 2 Feb. 2006 <[|Source]>.

Unknown, Author. "Fair Dealing." Answers Corporation. 6 Feb. 2006 <[|Source]>.

Unknown, Author. "Freelancers Copyright Case Foreshadows Future Policy Battle." Nov. 2004, ARMA International. 6 Feb. 2006 <[|Source]>.

Unknown, Author. "Nevada Court Rules Google Cache is Fair Use." 25 Jan. 2006, EFF. 6 Feb. 2006 <[|Source]>.

Unknown, Author. "Copyright and Fair Use in the Classroom, on the Internet, and the World Wide Web." University of Maryland University College. 3 Feb. 2006 <[|Source]>.