Understanding the Difference Between Fair Use and Fair Dealing

When a person creates an original creative work such as a book, song, video, or photograph, they acquire copyright protections as soon as the work is fixed in a tangible medium, such as paper, CD, or data file. That means that no one else can use the work without getting permission from the copyright owner—with one exception: under the defense of fair use. In the U.S., the fair use doctrine allows for the unlicensed use of copyrighted works in certain circumstances, such as education, parody, and news reporting.

Fair dealing vs. fair use

Other countries have a similar exception, called fair dealing, that allow for the use of copyrighted work without obtaining a license. Fair dealing is not a doctrine that applies in the United States.

Canada, the United Kingdom, Australia, New Zealand, Singapore, India, and other countries each have their own laws about what constitutes fair dealing when using copyrighted work, so it is important to consult the laws of the country you are engaged with. You do not need to consider fair dealing when using works with copyright protection in the United States. If you want to use a work copyrighted in another country, you would need to understand that country's laws. This situation arises often for users of social media.

Fair use doctrine exception

The fair use doctrine, part of the Copyright Act of 1976, is an exception to copyright law and the absolute ownership of copyrighted work in the U.S. To encourage freedom of expression, the doctrine allows others to use the copyrighted work or portions of it without permission in certain circumstances. A variety of factors, taken as a whole, are considered when determining if a particular usage constitutes fair use:

• The purpose and character of the use, in particular whether the use is of a commercial nature or for nonprofit educational purposes; the latter is more likely to be deemed fair use than the former.
• Whether the use is "transformative," meaning the work has been altered in some way that adds something new and valuable, rather than used as is. Examples of transformative use include parody.
• The nature of the copyrighted work. Quotes from works that are educational in nature, such as an article from an academic journal, are more likely to support a fair use claim than creative works, such as novels, because the dissemination of factual information benefits the public and copyright protections focus on encouraging creative expression. Use of an unpublished work is less likely to be considered fair than a work that has been published.
• The amount and substantiality of the work used in proportion to the work as a whole. A court can look at both the quantity and quality of usage when determining the validity of a fair use defense. For example, it might be reasonable to include a paragraph from a novel but not from a short story.
• The effect of the use on the current or potential market or value for the original work. If the unlicensed use of the work could deprive the owner of income, then it is less likely to be considered fair use.

Fair dealing laws have similar requirements, but they differ by country.

Examples of fair use

It can be easier to understand the fair use doctrine by considering some examples of acceptable use. The following would most likely be accepted as fair use:

• Quoting a few lines from a play on a blog that reviews plays. This may be allowed because it is a small amount of the work and is being used for critical evaluation.
• Uploading a video parody of a popular song to YouTube might qualify because parody can be considered a transformative use that changes the work into something new.
• Using parts of a press release from the National Rifle Association in a newspaper report. News reporting can be considered fair use of newsworthy items.
• A researcher quoting part of a study in a related speech to the scientific community can be considered fair use because it is for educational use.
• A professor putting up a photo of the president on her political science class website to illustrate that the current presidency will be discussed as part of the syllabus can be considered fair use because the use is educational.

Countries that adopt fair dealing principles have similar examples. However since each country has its own laws, it is best to refer to those laws to understand what would be acceptable usage for fair dealing.