Differences between new fair dealing and fair use

6.8 What is the difference between fair use and this new fair dealing exception? Under fair use, the list of purposes, or types of use, is merely illustrative. The fact that a particular use is not for one of the illustrative purposes does not mean that the use cannot be found to be fair. Fair use essentially asks one question: Is this use fair, considering the fairness factors?

6.9 The new fair dealing exception, on the other hand, can only apply to a use of copyright material if the use is for one of the prescribed purposes. If a given use does not fall into one of the categories of use, then it cannot be found to be fair. This confined fair dealing exception asks two questions: 1. Is this use for one of the listed purposes? 2. If so, is this use fair, considering the fairness factors? The exception only applies if the answer to both questions is ‘Yes’. Therefore the new fair dealing exception is a narrower defence to infringement than fair use.

6.10 Although confined to prescribed purposes, this new fair dealing exception also expands the range of purposes currently provided for in the existing fair dealing exceptions in the Copyright Act.

6.11 The word ‘use’ in ‘fair use’ is intended to have the same meaning as ‘dealing’ in ‘fair dealing’. No difference comes from the fact that one exception uses the word ‘use’ and the other ‘dealing’.

6.12 In discussing the meaning of the word ‘dealing’ in the existing fair dealing exceptions, Professor Sam Ricketson argues that it does not refer only to the making of reproductions, but that rather, it was

reasonable to regard a dealing with a work for the purposes of ss 40–43 as extending to the doing of any act which falls within the scope of the copyright owner’s rights, ie not only the making of reproductions, but also the public performance, communication to the public, adaptation or even publication of a work.[1]

6.13 This Report refers to ‘fair dealing’ because this is the expression used in the Copyright Act and because it is most commonly associated with fairness exceptions confined to prescribed purposes.

[1] Thomson Reuters, The Law of Intellectual Property: Copyright, Designs and Confidential Information [11.20].