Fair Use in the UK, Fair Use in the USA ? No Future, No Future

Date01 January 2007
Author
Fair Use in the UK, Fair Use in the USA …
No Future, No Future1
SEÁN O’DONNELL*
The purpose of the fair dealing defences to copyright infringement in UK
law is to ensure a balance between the copyright owner’s interest of securing
a just return on creative work and the public interest in ensuring that
intellectual property does not impede the flow of information and ideas.2
This basic rationale can also be applied to the defence of fair use in the US.
However, after establishing this underlying concept of balance in the
inclusion of this defence in the copyright bargain in both countries, closer
examination reveals that the concepts of fair use and fair dealing differ
somewhat in their respective jurisdictions. The aim of this paper is to
examine the defence of fair dealing/fair use in these jurisdictions for the
purposes of comparison. It is quite evident that there are advantages and
disadvantages to the f‌lexibility of the broad doctrine of fair use in the US. In
the same way, the more restrictive approach in the UK has the advantage of
legal certainty, but perhaps at the expense of adaptability. After discussing
the pertinent case law and underlying doctrine of each legal tradition, I will
delineate the possible merits of inducting a broader doctrine of fair use into
the UK law, similar to that of the US. I shall also demonstrate how new
legislation in both areas threatens to restrict the availability of this defence
and upset the crucial balance of the copyright compromise.
The US position
The fair use doctrine stands as “the oldest and most important” limitation
on the rights held by copyright owners.3Its origins can be traced as far back
as the US Constitution and the granting of power to “promote the progress
* Seán O’Donnell LLB (Queen’s University, Belfast), Trainee Barrister & Solicitor with
Taragh Bracken, Toronto, Ontario, Canada.
1This is in itself a fair use of some lyrics from the Sex Pistols song “Anarchy in the
UK”. By taking the lyrics “Anarchy in the UK, anarchy in the USA. No future, no
future.” I have effectively transformed the meaning of the words to create something
new. It qualif‌ies for fair dealing under both the US and UK systems.
2Griffiths, “Preserving Judicial Freedom of Movement: Interpreting Fair Dealing in
Copyright Law” (2000) 2 Intellectual Property Quarterly 171
3Fisher, “Promises to keep: Technology, Law and the Future of Entertainment” (2004) 43,
as quoted at http://cyber.law.harvard.edu/events/SignalNoiseBBFINAL.pdf, accessed on
7 July, 2007

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