Fair Dealing

Fair dealing is the most important and prominent of theses exceptions (Copy Act explicitly lists a number of such exceptions by which users can access and make use of copyright work without needing to obtain the consent of the copyright holder or to pay a licensing fee.).

There are two aspects used to decide whether a particular use of copyright material falls under the exception of Fair Dealing:

1. The purpose of using the copyrighted work and
2. whether the degree of use is fair to the creator.

To be considered Fair Dealing, the use of a copyrighted work must belong to the list of approved uses, which includes:

• personal study
• research
• criticism (such as a critical response to a published opinion article)
• review
• news reporting
• education (including making multiple)
• parody
• satire

In contrast, the determination of whether a particular use of copyrighted work is fair to the creator is a judgment call. There are no objective measures for determining whether a use is fair, although there are a number of factors used in past court cases to decide fair dealing. These include:

• How many copies of the original work are being made, and how widely they are being distributed? If there are only a few copies and they are destroyed after their use, then it is easier to conclude that the dealing is fair. An example of fair dealing is allowing a consumer to preview a song before purchasing it and ensuring that the preview copy is destroyed after being heard.
• How much of the original work is being copied? With respect to this factor, the courts tend to care more if the copied portion is qualitatively an important part of the original work, rather than if the copied portion is quantitatively a large percentage of the original work.
• If the original work is confidential, then copying and making the work public is likely an unfair dealing.
• An important factor is whether the derived work adversely affects the market for the original work - either by competing with the original work, or by defaming it.

Fair Use

Fair Use is a copyright exception that applies in the United States and a few other places, such as Israel and Taiwan. Under the rules for fair use, the set of allowable purposes for using a copyrighted work is not predetermined.

The US Copyright Law does list a number of possible uses of a copyrighted work, such as criticism, comment, news reporting, teaching, scholarship, and research. In the case of Fair Use, though, the list of purposes is illustrative rather than definitive; the list is not closed to other possible uses.

Instead, the particular details of the case determine whether a particular use is fair, such as whether the derivative work is highly transformative compared to the original work. Another example might be whether the derivative work is a commercial product or whether it has a negative effect on the market for the original work, and so on.

Oracle Vs. Google case

The Supreme Court found Google’s use of the Java APIs to be Fair Use, and this ruling is final. It is worth pointing out that all of the courts that considered Google’s Fair Use argument thoroughly investigated all four factors that make up Fair Use consideration. In particular, even though Google clearly intentionally benefits commercially from its use of the Java APIs, this commercial use does not preclude it from being Fair Use.