Academic journal article Santa Clara High Technology Law Journal

Fairness in Copyright Law: An Anglo-American Comparison

Academic journal article Santa Clara High Technology Law Journal

Fairness in Copyright Law: An Anglo-American Comparison

Article excerpt

                          TABLE OF CONTENTS  INTRODUCTION                                               45   I.  OVERVIEW OF FAIR USE/DEALING                         46       A.  The United States                                46       B.  The United Kingdom                               47  II.  THE EUROPEAN INFLUENCE                               48 III.  THE THREE-STEP TEST                                  50  IV.  THE FAIRNESS FACTORS                                 51       A.  The Purpose and Character of the Use             51       B.  The Effect on the Market for the Copyright Work  56       C.  The Amount Taken from the Copyright Work         60       D.  Whether the Copyright Work has been Published    67       E.  Whether the Author/Owner has been Acknowledged   70       F.  Human Rights                                     73 CONCLUSION                                                 76 


Fairness stands at the crossroads of copyright law. The concept of fairness--which seeks to balance the interests of copyright owners and users as well as the needs of the public in receiving information--is present in the copyright exceptions in both the U.S. and the U.K. The U.S. and U.K. adopt different approaches to how the defenses should be structured, with the U.S. having an open list of which types of use can benefit, leaving this for judges to develop in response to specific fact patterns and changing conditions before them. on the other hand, the U.K. has a list, pre-determined by the British Parliament, of which uses can benefit. ultimately, all use the notion of fairness to moderate between different interests at stake, and most of this piece is devoted to documenting how the factors used to determine whether use is fair are in fact very similar, and the evidence used to determine whether they are made out is also very similar. (1) However, it will be argued that the open-versus-closed list approach does make a big difference to the likely outcomes in the jurisdictions, by giving U.S. courts the license to privilege the type of use over the countervailing interests of the copyright owner in a way that is just not open to U.K. judges. Consequently, judges in the U.K. pay more attention to the other factors which, although largely common to the U.S., are applied more strictly against second users of copyright works on the side of the Atlantic.


This section describes the structure of the fairness defenses in the United States and the United Kingdom. It also explains some of the external instruments that shape those defenses. Both jurisdictions have defenses to trademark infringement, which allow third-party use of copyright work deemed to be "fair." (2) However, the way in which these defenses are structured differs such that one potentially leads to differences in the substantive result when compared to the other.

A. The United States

The fair use defense in the United States is found in 17 U.S.C. [section] 107, which codifies prior jurisprudence on this issue. Section 107 reads:

Notwithstanding the provisions of sections 106 and 106A [the infringement provisions], the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. … 
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