Fair Use Copyright Explained for Creators

Below is a comprehensive overview of fair use in the United States and corresponding doctrines in Canada, the United Kingdom, and Australia. These principles allow certain limited uses of copyrighted material without obtaining permission from the rights holder, typically to advance purposes such as criticism, review, research, or education. The exact scope and tests, however, vary across jurisdictions.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. For specific questions regarding fair use or fair dealing, consult qualified legal counsel in the relevant jurisdiction.

1. Fair Use in the United States

1.1 Statutory Basis: 17 U.S.C. § 107

Fair use in the U.S. is codified in 17 U.S.C. § 107. It provides an open-ended exception to copyright infringement, allowing certain unlicensed uses of copyrighted works for purposes including:

Criticism
Comment
News reporting
Teaching (including multiple copies for classroom use)
Scholarship
Research

1.2 The Four Fair Use Factors

When determining whether a use is fair, U.S. courts apply four factors, all of which must be considered:

Purpose and Character of the Use
- Is the use transformative (adding new meaning or message)?
- Is it commercial or non-profit educational?
- A transformative, non-commercial use weighs in favor of fair use.
Nature of the Copyrighted Work
- Uses of factual or published works are more likely to be considered fair than uses of highly creative or unpublished works.
Amount and Substantiality
- Using a smaller portion of a work, or not the “heart” of the work, leans toward fair use.
- Using the entire work or a significant excerpt that captures its essence weighs against fair use.
Effect on the Potential Market
- If the unlicensed use significantly reduces the market value or potential market for the original, that weighs against fair use.

1.3 Flexible, Case-by-Case Analysis

Fair use in the U.S. is not a bright-line rule. Courts weigh the four factors on a case-by-case basis, resulting in a flexible but sometimes unpredictable doctrine. Different federal circuits may emphasize factors differently, and no single factor is determinative.

2. Fair Dealing in Canada

2.1 Governing Law

Canada’s fair dealing provisions are found in the Copyright Act (R.S.C., 1985, c. C-42). The Canadian Supreme Court has interpreted these provisions in a series of landmark cases, most notably CCH Canadian Ltd. v. Law Society of Upper Canada (2004) and subsequent rulings.

2.2 Enumerated Purposes

Fair dealing in Canada is purpose-specific; it must fall under one of the following listed categories (with some expansion in later amendments):

Research
Private Study
Criticism
Review
News Reporting
Education, parody, or satire (added in 2012 reforms)

If the use does not fit into at least one of these enumerated categories, it cannot qualify as fair dealing.

2.3 Two-Step Test

Canadian courts apply a two-step test for fair dealing:

Allowable Purpose: The use must fall under an enumerated fair dealing purpose.
Fairness Assessment: Once the purpose is established, courts examine factors akin to the U.S. system (e.g., purpose of the dealing, character of the dealing, amount of the work used, alternatives to the dealing, nature of the work, and effect of the dealing on the work’s market).

2.4 Comparison to U.S.

Stricter Categories: Canada’s fair dealing is narrower and more enumerated than the U.S. fair use.
Fairness Factors: Similar in concept to the U.S. four factors but used within a narrower framework of allowable purposes.

3. The UK’s Fair Dealing Exceptions

3.1 Legal Framework

In the United Kingdom, fair dealing provisions are set out under the Copyright, Designs and Patents Act 1988 (CDPA), particularly Sections 29 and 30. While partially harmonized with European Union directives (pre-Brexit), the UK’s approach retains a purpose-based structure.

3.2 Specific Categories

Permissible fair dealing exceptions typically include:

Research and Private Study
Criticism or Review
Quotation (subject to sufficient acknowledgement and proportionate use)
News Reporting
Parody, Caricature, and Pastiche (introduced in 2014)

Use outside these categories usually does not qualify as “fair dealing.”

3.3 Fairness Analysis

UK courts assess factors akin to Canada and the U.S., asking whether the dealing is fair and proportionate to the stated purpose, and whether it impacts the market for or value of the work. However, the enumerated list of purposes is narrower compared to the open-ended U.S. fair use.

4. Australia’s Fair Dealing Provisions

4.1 Statutory Basis

Australia’s fair dealing exceptions are contained in the Copyright Act 1968 (Cth). Similar to Canada and the UK, Australia’s approach is purpose-specific.

4.2 Enumerated Purposes

Australian law recognizes fair dealing for:

Research or Study
Criticism or Review
Reporting News
Judicial Proceedings or Professional Advice
Parody or Satire (added in 2006 reforms)

If the use does not fit one of these heads, it cannot be deemed fair dealing.

4.3 Fairness Considerations

Courts in Australia look at the following to assess fairness:

The purpose and character of the dealing.
The nature of the work.
The possibility of obtaining the work commercially.
The effect of the dealing on the market or potential market for the work.
The amount and substantiality of the portion used.

4.4 Comparison to U.S.

Like Canada and the UK, the permissible categories are more rigidly defined than in the U.S.
Australia’s approach to fairness shares conceptual similarities (amount used, market effect, etc.) but is more restrictive because each dealing must fit a named category.

5. Comparing the Systems

Aspect	United States (Fair Use)	Canada (Fair Dealing)	UK (Fair Dealing)	Australia (Fair Dealing)
Legal Basis	17 U.S.C. § 107	Copyright Act (R.S.C., 1985, c. C-42)	CDPA 1988	Copyright Act 1968 (Cth)
Structure	Open-ended; four-factor balancing test	Purpose-based, must fit an enumerated fair dealing purpose	Purpose-based, must fit recognized categories (e.g., criticism, review)	Purpose-based, must fit recognized categories (e.g., parody, research)
Enumeration of Purposes	Non-exhaustive list of examples	Exhaustive list (research, private study, etc.), with some expansions	Exhaustive list (e.g., criticism, review, news reporting, parody)	Exhaustive list (research/study, review, news, parody, satire)
Key Factors	4 factors (purpose, nature, amount, market effect)	2-step test: (1) enumerated purpose; (2) fairness factors (similar to 4 factors)	Assess fairness, proportionate use, and potential market harm	Similar to U.S. factors but restricted to enumerated purposes
Flexibility	Highly flexible and case-by-case	Some flexibility, but must fall under recognized purpose	Moderately flexible within enumerated exceptions	Moderately flexible within enumerated exceptions

6. Practical Considerations

Jurisdiction-Specific: Because each country’s law differs, a use that qualifies as fair use in the U.S. may not qualify as fair dealing in Canada, the UK, or Australia—especially if it falls outside the listed purposes.
Case Law & Precedents: Courts play a critical role in shaping how these doctrines apply to new technologies (e.g., online content-sharing, streaming).
Transformative Use: The concept of “transformative use” is central to U.S. fair use. While Canadian, UK, and Australian courts may consider how significantly a work has been altered, the transformative element is not as explicitly ingrained in fair dealing statutes as it is in U.S. jurisprudence.
Educational and Research Contexts: All four jurisdictions provide broad allowances for educational or research uses. However, the extent of allowable copying can vary, especially for commercial training programs or widely distributed course materials.
Commercial vs. Non-Commercial Use: In all jurisdictions, purely commercial exploitation of a copyrighted work without permission is less likely to be excused than purely nonprofit or educational uses.

7. Conclusion

While the United States’ “fair use” doctrine is notably open-ended and relies on a multi-factor balancing approach, fair dealing in Canada, the UK, and Australia follows a purpose-based structure with enumerated exceptions. Nonetheless, all these systems are united in their overarching goal: to balance the exclusive rights of copyright holders with the public interest in accessing and reusing creative works under certain circumstances.

For more information:

U.S. Copyright Office: Fair Use OR watch this awesome video
Canadian Copyright Act
Australian Copyright Act 1968

Disclaimer: Always consult a qualified professional if you have a specific use case in mind. Copyright law is nuanced, and the doctrine of fair use or fair dealing can yield different outcomes depending on jurisdiction, facts, and judicial interpretation.

The Fair Use/Fair Dealing Copyright Exemption: A Four Country Examination