[FC-discuss] UK Fair Use?

[Rob Myers]

Timothy Cowlishaw wrote:
> This is all from memory, so might not be entirely accurate - Rob  
> Myers is probably the best person to advise you on these sort of things!

MJ Ray raises the important point that the UK has three different legal 
systems; one for England & Wales, one for Scotland, and one for Norther 
Ireland. All three are common law systems, and for copyright they have 
had to incorporate the Berne Convention and various European Union 
directives which makes the copyright law quite similar. But we do have 
separate Creative Commons licenses for England & Wales and for Scotland 
for example. For an (inaccurate) American comparison the three legal 
systems are like state law, with the EU as Federal law.

As others have mentioned, the UK has Fair Dealing rather than Fair Use. 
Fair Dealing is much, much weaker than Fair Use from a Free Culture 
point of view. There aren't that many rights under Fair Dealing for DRM 
to restrict.

Fair Use and Fair Dealing are both examples of exceptions to copyright. 
Exceptions to copyright are allowed by the Berne Convention:

http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P140_25350

Fair Use is a generic exception, where use has to pass a four-point test 
to be allowed:

http://en.wikipedia.org/wiki/Fair_use#Fair_use_under_United_States_law

Fair Dealing is a series of specific exceptions, where use has to be 
explicitly mentioned in law to be allowed:

http://en.wikipedia.org/wiki/Fair_dealing

Fair Dealing in the UK has been reduced over the years to the point 
where it now just covers copying for academic research and time 
shifting. Oh, and review and criticism. As others have mentioned, we 
have no right of personal copying or format shifting:

http://en.wikipedia.org/wiki/Copyright_law_of_the_United_Kingdom#Fair_dealing_and_other_exceptions

We are hopefully getting some more Fair Use-like exceptions for parody 
and transformative use, as well as format shifting, as a result of the 
Gowers Review of "Intellectual Property":

http://www.hm-treasury.gov.uk/independent_reviews/gowers_review_intellectual_property/gowersreview_index.cfm

So that's the state of play for copyright exceptions in the UK.

To cross over to the BBC letter discussion, I agree with Tim about 
mentioning Fair Use. Although copyright exceptions are an international 
principle, and many of us involved in Free Culture in the UK look on 
Fair Use as the gold standard of copyright exceptions, it won't have 
very much meaning for the BBC.

- Rob.