7 - Fair Dealing’s Failures?

Summary

The previous chapter discussed Australia’s experiment with homegrown ‘flexible’ drafting in section 200AB. But Australia, like other countries whose copyright laws derive from the Imperial Copyright Act 1911, also recognises fair dealing exceptions. In its original statutory form in the 1911 Act, the relevant text stated that there was no infringement by any ‘fair dealing with any work for the purposes of private study, research, criticism, review, or newspaper summary’. In the intervening years, fair dealing provisions have become more complex. In Australia, Canada and the United Kingdom, for example, they are longer, split across multiple provisions in the copyright statute and are more particularised. That said, the central requirement of fairness is suggestive of a standard, and this open-ended concept, combined with the introduction of new fair dealing purposes, raises the question of how much day-to-day fair dealing practices overlap with fair use activity in the United States.