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Q: 'Fair use' and 'Fair dealing' ( Answered,   0 Comments )
Question  
Subject: 'Fair use' and 'Fair dealing'
Category: Reference, Education and News
Asked by: tvr-ga
List Price: $26.00
Posted: 08 Aug 2003 06:19 PDT
Expires: 07 Sep 2003 06:19 PDT
Question ID: 241361
The Fair Use section of the copyright law at the US Copyright office 
states: (FL 102, Fair Use, and Circular 21)
  
" 107. Limitations on exclusive rights: Fair use38  
Notwithstanding the provisions of sections 106 and 106A, 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."

I am aware that there exists a similar term in Canada and U.K. is
called 'fair dealing'. I am looking for a list of countries that have
either a 'fair use' or 'fair dealing' clause explicitly built into
their copyright law. Would appreciate links to this information.

I believe that most countries that were under the British Commonwealth
have such a clause and have taken a look at the following links:
http://www.wikipedia.org
http://onlinebooks.library.upenn.edu/fairuse-explain.html

Please feel free to ask if you need further information/clarification.

Thanks.
Answer  
Subject: Re: 'Fair use' and 'Fair dealing'
Answered By: easterangel-ga on 13 Aug 2003 02:53 PDT
 
Hi! Thanks for the quesion.

The Berne Convention is the principal international treaty governing
the protection of authors and music composers' works. All country
signatories of the Berne Convention are mandated to have some kind of
"fair use" clause in their copyright laws.

"All countries that signed the "Berne convention" include a "fair use"
clause in their copyright laws."

"The Threat to Astronomical Databases"
http://www.atnf.csiro.au/people/rnorris/WGAD/MeetingIAUGA2000/rnorris/

"Copyright and related-rights treaties and laws"
http://www.ifpi.org/site-content/legal/treaties.html


Currently there are at least 150 countries who are signatories to the
Berne Convention.

The WIPO (World Intellectual Property Organisation) has a list of the
member countries of the Berne Cnnvention. The list was last updated on
July 15, 2003 so it is pretty recent.
 
You will need MS Word to read the whole document. The document also
provides the dates when each country became a member and other
pertinent information. In case you are having trouble downloading the
document just tell me.

Berne Convention Country List
http://www.wipo.int/treaties/documents/english/word/e-berne.doc


If you want to view the text of the Berne Convention, you can find it
here.

"Berne Convention for the Protection of Literary and Artistic Works"
http://www.wipo.int/clea/docs/en/wo/wo001en.htm#P146_26823  
 

Meanwhile, the countries specifically using the "fair dealing" term
are nations who adopted their copyright regulations based on UK laws.

1. UK
2. Canada
3. Australia
4. Hong Kong
5. New Zealand

"'Fair dealing' or 'Fair use'?"
http://www.cityu.edu.hk/cityutoday/news/category/ideas/roundtable/n20011113_01.htm


Search terms used:                
"fair use" "fair dealing" "Berne convention" countries list
       
I hope these links would help you in your research. Before rating this
answer, please ask for a clarification if you have a question or if  
you would need further information.  
               
Thanks for visiting us.               
               
Regards,               
Easterangel-ga               
Google Answers Researcher

Request for Answer Clarification by tvr-ga on 13 Aug 2003 23:40 PDT
Hello!

Thanks for the answer. I believe that it is, however, far too
simplistic. I am aware of the Berne Convention through articles that I
checked on http://www.wikipedia.org. But as I requested in the
question I'm looking for "a 'fair use' or 'fair dealing' clause
explicitly built into
their copyright law" (note that I used the term 'explicitly'). 

So, it would be better if you could provide a link to the section of
the treaty that explicitly mentions that "all countries that signed
the Berne Convention include a fair use clause in their copyright
laws" rather than to a link (which having been put up in 2000 is
probably outdated).

Thanks.

TVR

Clarification of Answer by easterangel-ga on 14 Aug 2003 02:05 PDT
Hi again!

I am a little bit puzzled. You original request was "I am looking for
a list of countries that have either a 'fair use' or 'fair dealing'
clause explicitly built into their copyright law" since I provided you
the members of the Berne Convention then it is the list you are
looking for.

Another thing is that the section on the Berne Convention that deals
with the matter of "fair use" is in Article 10.

-------------------------------------------------------
[Certain Free Uses of Works: 1. Quotations; 2. Illustrations for
teaching; 3. Indication of source and author]

(1) It shall be permissible to make quotations from a work which has
already been lawfully made available to the public, provided that
their making is compatible with fair practice, and their extent does
not exceed that justified by the purpose, including quotations from
newspaper articles and periodicals in the form of press summaries.

(2) It shall be a matter for legislation in the countries of the
Union, and for special agreements existing or to be concluded between
them, to permit the utilization, to the extent justified by the
purpose, of literary or artistic works by way of illustration in
publications, broadcasts or sound or visual recordings for teaching,
provided such utilization is compatible with fair practice.

(3) Where use is made of works in accordance with the preceding
paragraphs of this Article, mention shall be made of the source, and
of the name of the author if it appears thereon.

Article 10bis

[Further Possible Free Uses of Works: 1. Of certain articles and
broadcast works; 2. Of works seen or heard in connection with current
events]

(1) It shall be a matter for legislation in the countries of the Union
to permit the reproduction by the press, the broadcasting or the
communication to the public by wire of articles published in
newspapers or periodicals on current economic, political or religious
topics, and of broadcast works of the same character, in cases in
which the reproduction, broadcasting or such communication thereof is
not expressly reserved. Nevertheless, the source must always be
clearly indicated; the legal consequences of a breach of this
obligation shall be determined by the legislation of the country where
protection is claimed.

(2) It shall also be a matter for legislation in the countries of the
Union to determine the conditions under which, for the purpose of
reporting current events by means of photography, cinematography,
broadcasting or communication to the public by wire, literary or
artistic works seen or heard in the course of the event may, to the
extent justified by the informatory purpose, be reproduced and made
available to the public
--------------------------------------------------

It is true that the term "fair use" or "fair dealing" was not use here
but 'fair practice' which is an explicit equivalent to the terms you
mentioned. This article explicitly embodies the spirit of the 'fair
use' or 'fair dealing' provisions of US or UK based laws. It is
through this directive that countries are mandated to have a 'fair
use' or 'fair dealing' clause in their copyright regulations. It is
probable that the term 'fair practice' was used so as to embody both
the US and UK based legal terms.

One more thing, the country list I provided in the MS Word document is
not outdated. In fact it was dated July 15, 2003. The reason for this
is that more countries are signing as time goes on. This is an updated
version and it came from the WIPO website.

I hope that my clarification enriches my original answer.

Thanks again!

Best Regards,
Easterangel-ga

Clarification of Answer by easterangel-ga on 14 Aug 2003 08:44 PDT
Hi again!

My fellow researcher markj-ga provided me some assistance and passed
on this  interpretation of "fair use" in the Berne Convention.

"Article 10 Berne Convention states that a country is free to permit
fair use of a work or not. Fair use in the Berne Convention is defined
as 'the utilization, to the extent justified by the purpose, of
literary or artistic works by way of illustration in publications,
broadcasts or sound or visual recordings for teaching, provided such
utilization is compatible with fair practice.'"

"Limitations on the rights granted by copyright"
http://www.iusmentis.com/copyright/crashcourse/limitations/

Thanks again!

Request for Answer Clarification by tvr-ga on 19 Aug 2003 05:20 PDT
Hello  easterangel-ga:

I am sorry for having puzzled you and I accept that 'fair practice' is
a good equivalent to the terms 'fair use' or 'fair dealing'. Also,
when I mentioned that the link is probably outdated I was referring
to:

"The Threat to Astronomical Databases" 
http://www.atnf.csiro.au/people/rnorris/WGAD/MeetingIAUGA2000/rnorris/

However, I still do not see any wording that MANDATES the signatories
of the Berne Convention Treaty to include a 'fair use' or 'fair
dealing' clause into their copyright law. In fact, the wording in
article 10 of this treaty leads me to believe that the power to
determine whether or not to include a 'fair use'/'fair dealing' clause
is left to the legislation of the member countries.

I have serious doubts on whether the members of the Berne Convention
form the list I am looking for. These doubts were the very reason for
my putting up the question on Google Answers in the first place.

As your fellow researcher markj-ga pointed out "Article 10 Berne
Convention states that a country is free to permit fair use of a work
or not". OR in simpler words we cannot assume that if a country signs
this treaty - they have a 'fair use' or 'fair dealing' clause
explicitly built into their copyright laws.

Extending this line of thought, I do not believe that the list of the
signatories of the Berne Convention Treaty forms the list I am looking
for. Please clarify.

Thanks in advance.

TVR

Clarification of Answer by easterangel-ga on 19 Aug 2003 06:24 PDT
Hi again tvr-ga!

A point of clarification first. My fellow researcher markj-ga only
pointed me to the source. He was not actually the source in fairness
to him.

Now let's go to the matter at hand. I think that Article 10 of the
Berne Convention is all you need and is the proof that the countries
mentioned has a "fair use" or a "fair dealing" clause among its
signatories. This is proven by the reference pointed out by markj and
by the very words of the Berne Convention.

If you go to the top of the article cited by markj, one of the early
pragraphs show that 'fair use' must indeed be practice.

"According to article 10(1) of the Berne Convention, anyone has the
right to take a relevant portion of somebody elses work and copy it in
his own work, provided attribution is given to the author. The
citation should of course not go beyond what is necessary for the
purpose of the citation."

So in this case there must be 1.) citation of the author and 2.) that
it must not go beyond what is the necessary for the purpose of
citation. What is beyond the purpose is left to the discretion of the
country's own law.

Here are the very words of the Berne Convention to the effect:

"It shall be permissible to make quotations from a work which has
already been lawfully made available to the public, provided that
their making is compatible with fair practice, and their extent does
not exceed that justified by the purpose,"

"It shall be a matter for legislation in the countries of the
Union, and for special agreements existing or to be concluded between
them, to permit the utilization, to the extent justified by the
purpose, of literary or artistic works"

"Nevertheless, the source must always be clearly indicated; the legal
consequences of a breach of this obligation shall be determined by the
legislation of the country where protection is claimed."

The Berne Convention must still adhere to the unique laws of each
member country since these are sovereign entities. But this does not
in anyway mean that they are permitted not to have some kind of 'fair
use' clause on their copyright laws.

I hope that this enriches my answer.

Thanks.

Clarification of Answer by easterangel-ga on 19 Aug 2003 06:33 PDT
As regards to the qoute

""Article 10 Berne Convention states that a country is free to permit
fair use of a work or not"

You must take the whole context of the interpretation. Immeidately
following this comment is an example of this line of thought.

"While the principles behind fair use are largely the same as behind
the citation rights, it is possible that a certain usable work is
considered a fair use, even though it is not a citation. For example,
if somebody writes an article and gives it away for free, the author
has himself severely limited the potential market and the value of his
work. If somebody else then makes a copy of the work and puts it on a
non-commercial website, he could be making a fair use of the work.
Since the original was also given away for free, the effect of giving
away copies via the website does not effect the potential market for
the original work. However such a copy of the whole work is highly
unlikely to be seen as a citation from the work."

The example shows that the 'fair use' clause may in such a manner
actually be found not applicable in cases like these. But it doesn't
mean that the Berne Convention tolerates a non 'fair use' clause in a
particular member's laws. It only shows again that it gives leeway to
the sovereign interpretation of each member.
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