Fair Use, Fair Dealing: will they survive?

Abstract

A previous article by this author discussed an emerging phenomenon on the Internet. That is, how the law, by denying copyright protection to certain kinds of digital works, may have restricted access to such works instead of liberating them, as was initially intended by the judiciary. This absurd conclusion has resulted from owners whose works are no longer protected by copyright law, who have resorted to restrictive contractual provisions on-line to control access and use of their works. And in turn, owners of such content are still able to generate revenue by charging a subscription fee for the right to gain access to the information contained therein. The result is particularly troubling to end users of digital content. If copyright law is no longer applicable, then what of the Fair Use/Fair Dealing defences available to users of these works? Does this mean that these defences are not applicable either? Are users of such content completely at the mercy of the owners’ terms and conditions of use as dictated by click-on agreements and Rules of Use posted on Web sites? This article discusses the application of Fair Dealing and Fair Use to Internet-based works, by examining the legislative and judicial responses to the ambiguities in their intellectual property protection which new technologies create.

Legal aspects of the web

“…A number of authors argue that exceptions to copyright in libraries are under severe threat at present (Minkel, 2000;Pantalony, 2001;Theriault, 2001). Phan (1998) argues for an expansion of fair use, although apparently few legislators are listening to such arguments at present.…”