The Lost Tradition of Fair Use in English and Colonial Copyright Law, Comments on Ariel Katz, Fair Use 2.0

Ariel Katz, Fair Use 2.0: The Rebirth Of Fair Dealing In Canada (Draft, Jan. 24, 2013)

In previous work I have highlighted the English origins of the modern fair use doctrine in abridgement cases from 1710 to 1841 (“The Pre-History of Fair Use” (2011) 76:4 Brooklyn Law Review 1371). The question that I failed to address is, if fair use was part of the English copyright law tradition, why do England and her former colonies now adhere to a much narrower concept of fair dealing? Ariel Katz’s new paper gives us some answers this question.

Conventional wisdom holds that in Commonwealth jurisdictions like England, Australia, New Zealand and Canada fair dealing cannot apply beyond the explicitly enumerated purposes. In the U.S. by contrast, the statutory purposes are just illustrations. Thus we are left with (in Katz’s words) an “omnipresent flexible fair use regime in the United States, and a seemingly rigid and restrictive fair dealing tradition in the Commonwealth countries.”

Katz’s bold claim is that the conventional wisdom is wrong!

“…the history of fair use and fair dealing and shows that … the enactment of the Imperial Copyright Act of 1911 [was] not designed to cause any major alteration in the common law of fair dealing, and the explicit recognition of five enumerated purposes in the (then) newly-enacted fair dealing provision was not intended to limit the principle of fair dealing exclusively to those five purposes.” (page 3)

Katz makes a strong argument that University of London Press, Ltd. v. University Tutorial Press, Ltd. (1916), 2 1916 Ch 601, the first reported case on the newly enacted English “fair dealing” provision of the 1911 Copyright Act may have been misread over the years. But I think that the strongest parts of the paper are his treatment of the legislative history of the 1911 Act and its contemporary reception.

The legislative history of the Imperial Copyright Act of 1911

The 1911 Act provided that: “Any fair dealing with any work for the purposes of private study, research, criticism, review, or newspaper summary” shall not constitute an infringement of copyright. Arguing that there was indication in the legislative history that the 1911 Act was meant to curtail fair use or freeze it in time. Katz has studied the introduction of the bill in Parliament and the House of Lords, he notes (at page 26) that

“If the Bill contemplated major reform with respect to fair dealing, it would have been expected that such change would be mentioned, but it was not. Nor did Viscount Haldane, who introduced the Bill to the Lords, mention any contemplated change with respect to fair dealing.”

Quite the contrary, Viscount Haldane in the House of Lords stated:

“All we propose to do is to declare that for the future the principle of fair dealing which the Courts have established is to be the law of the Code. … The principle of fair dealing is a principle which the Courts have applied with the greatest care. … All that is done here is to make a plain declaration of what the law is and to put all copyright works under the same wording.”

Why codify fair dealing if no change to fair use was intended?

Katz notes (page 25) that

“a simple explanation [for the codification of fair dealing] might be that since the 1911 Act was mainly a project of consolidation of different acts and codification of different common law rules, it seemed prudent not to leave fair use without any statutory basis. … Another explanation … if the Act only recognized the expansion of the copyright but remained silent about limitations to those expanded rights, court might have interpreted that as a signal that Parliament had decided to abolish fair use.”

Katz argues that it is even possible that the fair dealing provisions in the 1911 Act may even have been an attempt to expand fair use.

“… it is possible that the purpose of specifying the five categories was not only to remove any doubts that fair dealing applied to those already recognized in the case law, but also to ensure that it applied to those who lacked solid grounding in the case law. In particular, the addition of ‘newspaper summary’ and ‘private study’, categories that had no direct precedent in the case law, can support this explanation.” (pages 25-26).

Reaction of Treatise Writers

Katz also does a wonderful job of surveying the contemporary reaction of copyright treatise authors to the 1911 Act. He summarizes (at page 30)

“… if by enacting the fair dealing provision Parliament had intended to modify the existing doctrine of fair use by confining it to five enumerated categories exclusively, most of the contemporaneous commentators failed to notice that intention.”

Some examples lifted from Katz’s paper:

J.M. Easton, Copinger on Copyright, 5th edition.

“[a]ny fair dealing, with, any work for the purposes of private study, research, criticism, review, or newspaper summary is also expressly permitted by the Act.”

“fair dealing for other purposes has always been … permitted and, presumably, it was not intended to cut down the rights of fair user previously enjoyed under the old law.”

JB Richardson, The Law of Copyright (London: Jordan & Son, 1913)

“The passing of The Copyright Act, 1911, has completely recast the Law of Copyright, at any rate those parts which depend primarily on Statute Law, such as the term of protection and ownership of copyright. Only those parts of the law which are practically judge-made—such as the questions as to infringement by a new work other than an exact copy—have remained to any great extent unaltered, and even they are not untouched.”

LCF Oldfield, The Law of Copyright (London: Butterworth & Co., 1912)

“[w]hat is fair dealing with a work depends upon the circumstances of each particular case”

How did the restrictive view of the 1911 Act come to dominate?

In terms of copyright law treatises, Katz’s research indicates that “[t]he view that Parliament had intended to restrict fair dealing to the five enumerated purposes began appearing later. … In 1927, the sixth edition of Copinger was published. This edition was no longer authored by Easton, but penned by F. E. Skone James and published by a different publisher.” (page 30)

Katz argues that University of London case of 1916 which is treated as confirming the narrow scope of fair dealing has long been misunderstood. If he is correct, what deserves further exploration is why such a misunderstanding should have taken such firm hold of copyright law in England, Australia, New Zealand … and until recently, Canada.

 

One thought on “The Lost Tradition of Fair Use in English and Colonial Copyright Law, Comments on Ariel Katz, Fair Use 2.0

  1. Thanks Matt. Some of the finding regarding the legislative history have already been made by others, such as Robert Burrell and Allison Coleman in their 2005 book “Copyright Exceptions: The Digital Impact” and Isabella Alexander in her 2010 book “Copyright and the Public Interest in the Nineteenth Century” and they deserve much credit.

    There might be another interesting lesson here, which resonates with your own writing on fair use, digital humanities, etc. Many of the older treatises (as well as earlier case law) are currently available online (often freely) and in searchable form. This makes it a lot easier today to study the history and evolution of legal concepts, to identify the origins of particular views that are often taken for granted, and test whether these views truly reflect the law.

    The source of the view that University of London as standing for the proposition that ‘private study’ only covers the case of a student copying out a book for his own use, but not the circulation of copies among other students, is probably the 6th edition of Copinger too. Why so many repeated this misinterpretation without actually reading the case closely enough is another question.

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