Fair Dealing

The Intellectual Property Office's guidance on copyright exceptions confirms both what fair dealing allows and how open-ended the concept is. It permits specific uses without the owner's consent: 'Fair dealing for criticism, review or quotation is allowed for any type of copyright work', alongside separate exceptions for research, private study, and reporting current events. But the guidance is equally clear that there is no fixed test: '‘Fair dealing’ is a legal term used to establish whether a use of copyright material is lawful or whether it infringes copyright. There is no statutory definition of fair dealing - it will always be a matter of fact, degree and impression in each case.'

In place of a statutory checklist, the guidance offers a general question and a set of relevant factors: 'The question to be asked is: how would a fair-minded and honest person have dealt with the work?' Courts are said to weigh factors such as whether the use substitutes for the original work in a way that costs the copyright owner revenue, and whether the amount of the work used was reasonable and necessary for the permitted purpose — with the relative importance of each factor varying from case to case.