'Fair Dealing': a quaint footnote to the British copyright regime?

Abstract

The following thesis explores the vicissitudes of the British copyright law defence of fair dealing from its birth as the common law defence of fair use through its subsequent development under the 1911, 1956 and 1988 Copyright Acts to its present situation in light of the most recent case of Ashdown v The Daily Telegraph [2002] as well as the changes proposed by the British Patent Office in its endeavours to implement the European Information Society Directive (29/2001/EC). It is submitted that the general development of this provision has been one of gradual decline. On a statutory level the defence has been continually restricted to the point where if the proposals of the Patent Office are accepted, it will be barely be able to operate as a defence designed to balance the interests of copyright owners against copyright users. As far as judicial pronouncements are concerned, up until 1990 it is submitted that the courts, in general, failed to demonstrate any real dynamism when interpreting the fair dealing provisions. It has only been in the last 10 years that the true potential of the defence, in maintaining this copyright balance, has been explored, although this has only tended to manifest when the courts have considered the position of media litigants. This in conjunction with the latest proposals for reform from the Patent Office, in light of the emergence of the digital age, could arguably sound the death knell for fair dealing. As governments of the two main trading blocks of Europe and the US continue to adopt an increasingly rights-maximising approach in favour of copyright owners it is submitted that fair dealing may well become a footnote to the British copyright regime.