Talk:Fair dealing

Regarding comments that were posted in regarding fair dealing:

[Is that actually true? I'm pretty sure there are some places where statues are copyrightable, and copyright applies almost everywhere to court reports, etc]

Do you mean statues or statutes? Statiues are definitely copyrightable. Regarding public statutes my point is that the law is something that we are all supposed to know. If it is copyrighted then we would always need to get permission from the government to copy it (just like saying words or letters are copyright &mdash, not possible — once something is a word in the dictionary it even looses its status as a trademark). There was actually a guy in the US that tried to copyright his name (and put the C next to it). The judges ruling is interesting to read because it explains the limits of copyright (some of those federal judges have a lot of patience!

I did, of course, mean statutes :). And yes, I understand your argument, but I'm sure I've come across references to a government, somewhere, passing laws which were drafted by a private firm, and on which the firm claimed copyright. Sorry, I can't give you a reference for where it happened (or an outcome).

Well, maybe you are thinking of the work made for hire exception when the US government has third parties do things so as not to place them in the public domain, unless you can find some authority, maybe we can wait until someone familiar with Australian law can comment, I've put on note on User:David Stewart's page, he might be knowledgeable.

Hmmm, I think this is a red herring. I was thinking in general terms (see below) -- I'm pretty sure that there is no copyright in Australian law.

There was a similar UK case on the subsistence of copyright in names in which it was ruled that "Exxon" could not be copyrighted: Exxon Corp v Exxon Insurance Consultants International [1981] 3 All ER 241

Yes, usually privately printed court reports have copyright notices, but the copyright really extends to layout and pagination, and the headnotes (if any) which is not the actual legal text — this is why we can copy the law without paying a royalty fee, even if any government asked for it, no lawyer or judge would ever pay for it, it is like saying that information like history or general knowledge is copyrighted (which it is not, and it cannot be).

Again, I'm sure you're right, but I'm not sure whether you're right about all jurisdictions. And it seems entirely possible that, if one were unlucky, Walter v. Lane or other such silly precedents could apply.

Nothing wrong with silly precedents; good way to get well known is to overturn one of them because they are silly, no? However, I do not think that in terms of equity that it would ever be possible for a judge to state that the laws passed by the Queen in Parliament that he is interpreting are copyrightable and even if there are cases out there or statutes that say it is copyrightable I think there is a valid argument that will always apply that they are the property of all, not for the individuals, and since we are not dealing with cross cultural issues as in Walter v. Lane (I assume you are talking about the case reported at [1900] AC 539) then I cannot see how anyone could make such an argument that could stick. Of course there are some pretty strange cases out there, so I will defer to some precedent, though I do see the statement that legal opinions are covered by fair dealing to be quite a generalization anyway, what authority do you have to back that up?

Yeah, that's the case. House of Lords, 1900. A speech is given in public by a politican. A newspaper hires skilled shorthand note-takers to record it, and publishes the speech. Some time later, another publisher prints a collection of the politican's speeches. The newspaper sues, and wins, because the note-takers were skilled participants placing the work in material form (the politican was not involved in the case). It seems that this reasoning (if it hasn't been overturned) could easily apply to court proceedings.

Except that the court was originally part of the Crown -- might to we say that by allowing her subjects to bring their grievances to the public court that such a forum is created for the benefit of all under the law of the land ans as they say in US law all have access to such a forum, property rights should not apply there. The politicians speech is still a private talk and the rules surrounding fixation do apply. It would be interesting to check Halsbury's Laws of England and see if this case as been overturned, unfortunately most of the law libraries here in New York don't have a copy that I can check easily.

[you need to be careful about this! Information like this may be advice, or it may be a policy position. This page is not the right place to deal with normative arguments about the correct scope of limitations and exceptions to copyright]

Please see the legal disclaimer if you are looking for legal advice.

This is a statement of this Canadian organization, it is their advice, not anyone else's. As far as your idea that discussing how different associations might interpret the copyright law how can that not be relevant to this page if what they are interpreting is fair dealing. It seems highly relevant to me, the limiations page should be a general page (BTW nowhere are things like public domain or crown copyright mentioned on that page, as they are obviously limiations and exceptions to copyright).

Well, what I'm getting at, I suppose, is that the structure of the fair dealing page should probably be something like:

• Explanation of the term
• The principles which universally, or near-universally, apply to fair dealing
• The national variations in the doctrine, stated succinctly, and as determined by legislation and relevant case law

I agree completely, I just found the page by accident and in my exhuberence started adding stuff, but I'm all for reshuffling stuff once it is clear that the previous structure does not work anymore due to edits and addition of specific material. Regarding the Canadian situation it is routine to quote these kinds of thing in Canada as they are sort of a consensual authority. This has to do with a cultural difference in the way law is practiced and applied in Canada, especially in the area of copyright. The fact is there is not a lot of litigation applying Canadian copyright law, most of the big bucks are down South of the Border (si, si, senior!) as we say in the good ol'USA, so that is where they litigate, even the Canadians litigate down there as mostly they are concerned with US copyright and they let the smaller issues (like fair use vs. fair dealing) slip through the cracks. Like the way we deal with most problems us Canadians organize a conference and try to get a consensus, so in Canada seeing an association making pronouncements on law is not really that irrelevant to presenting a general understanding of what the law is in Canada, as that consensus actually applies to a very large portion of Canadian society. Is that clear? I don't know if it is different in other Commonwealth jurisdictions, I have only lived in the US and Canada.

Once again I must say that I think these normative arguments do belong here, because in the Canadian tradition that is what fair dealing has become.

Some of the stuff you added (such as comments by library associations on the scope of exceptions) should probably either go in a seperate section, or maybe even in a different article (like the general limitations & exceptions article, or an article on the politics of exceptions). Other material, such as the point that you can go to a copyright collecting society for licenses, should definitely be in a different article.

There is an article that I started or an working on taht goes into more details about collecting societies, and I think that such schemes and their history (mostly in terms of music) do deserve another page but I think the issue is related. A sentence or two explaining rather than just a word seems good policy. I read somewhere in the Wikipedia: namespace that you do want to give some basic understanding of other concepts and I think collective licensing schemes do show what the limits of fair dealing are and how the issue has almost been minimalised to deal with people who do private research and are not connected to major institutions as if you are part of these schemes it almost doesn't matter how many copies you make because the royalty rate is usually based on the annual photocopying volume. And those comments by the library associations, once again, are of some normative value because everyone follows them and the copyright collectives deal with the issue anyway and who is going to sue someone over a couple of copies when they can set up a system of collecting and distributing royalties from every public institution that has a photocopy machine and uses it to copy works that are 90% from catalogued collections.

It may just be that your article-writing approach is different to mine, ie, "grab lots of material, lay it out in sections, and then winnow it down", rather than "carefully distill material, and only add `orthogonal', Encyclopedia-ready text to the article". I kind of assumed you were doing the first, so I left the in-line notes there as commentary for the process of refinement.

I am relatively new at this was of collaborating, but I try to at least make the article presentable to someone who pops into Wikipedia from outside. As far as grabbing material, most of the stuff I put in there I know as I did quite a bit of copyright research when I was living in Canada. I was even on a federal government policy making commmittee (though I am unable to discuss what went on in those committee sessions). Actually I was turned off by Wikipedia because the first few times I found links to it the stuff was just so minimal that I couldn't even sink my teeth into it. It wasn't until I found an article that had a lot of stuff, some inaccuracies and some missing stuff that I became facinating with the process of contributing and then having one's contribution become grist for the mill. I am trying to duplicate my own experience here, perhaps.

[comments like this need to be factored out! This "fuzzy" definition is an inherent aspect of British-derived common law, and it's silly to include it once in your comments about each county]

Actually in Canada © law is NOT common law — common law copyright was abolished in Canada (as it may or may not be in other commonwealth jurisdictions, that I will have to check) — it is purely statutory. Thus I think the distinction is worth some merit. Perhaps the reference to common law should be taken out of the top as it is really misleading there. It is not that they are common law countries (after all there is no common law in Quebec and it is part of Canada) but that they share the same tradition of one being bound by British © law when they were colonies. Copyright (common law) is interpreted in the countries where it applies and the reference to statutory interpretation is used where statutory © law applies (they are different things even though they are both done the the setting of precedent via case law.

Common law copyright was abolished in the UK quite some time ago, too: see Donaldson v. Beckett (4 Burr. 2408, 98 Eng. Rep. 257 (H.L. 1774)). The point I was trying to make is that precedential interpretation of statutes covering fair dealing (which I was associating, possibly incorrectly, with common law) leads to fuzzyness everywhere, so that should be "factored out", ie, placed in the first part of the article, rather than in the Canadian section.

I am not sure it is a general statement, as the rules of construction and interpretation differ in each jurisdiction and may rely upon different precedents. In Canada we always have the problem with the civil law influence or droit auteur approach in © law which was considerable in © as the first Canadian © law was championed by a French Canadien jurist who made sure that Canada was the first commonwealth country to get moral rights provisions in its statute (think he actually knew Victor Hugo). Also, rather than make one broad statement that might be specifically inaccurate I would we rather make specific statements that apply in each jurisdictions as people may just jump ahead from the intro (thinking it is general) and move down to the specifics unless you think fair dealing (Australia), fair dealing (Canada), fair dealing (U.K.) and etc., need building (I guess we will get to that eventually, no?

[incidental use is not copyright infringement in Australia, either]

I didn't really work in the Australian part because someone else started that (except the comment about the copyright of law, actually some Australian lawyer may suggest that the law is copyrighted under the law, but it may still be in the public domain as such a law is probably an invalid Crown copyright under the principles of British constitutional law Actually incidential use is probably not copyrightable anywhere otherwise we would have to get releases to use practically everything that is created today. Alex756

Yes, and my intention in mentioning that was: if this is the case in the UK, and in Australia, chances are, it's the case everywhere fair dealing is found, so we should do some more reseach on it...

Once again I think because of the timeline on Berne implementation and the breakup of the British Empire we will see lots of variation between Commonwealth countries, that is why I think it is better to make a very general statement about fair dealing and then get to specifics in each jurisdiction.

It isn't safe to assume that "incidental use" != copyright infringement everywhere, because different countries' laws may make this kind of exception through different legal mechanisms. In Anglo-Australian ©, there is a definition of reproduction which operates quite deeply (it has two criteria, "whole or a substantial part", "material form"); it then says "incidental" use is OK. Other copyright laws (and there are lots of them) might well have an entirely different structure (I'm not sure).

I agree, because of the various implementations of the Berne Convention and the evolution of © thinking it is quite difficult to make generalizations; I appreciate your diligence and I hope we can continue to improve this article.

I was the person who added the "in Australia, fair dealing follows these critera" text, and I added that disclaimer because I wasn't sure, off the top of my head, whether the rules were exactly the same elsewhere. Most (or all) of that first part should not end up Australia-specific.

Well, seeing your example inspired me to add some basis UK and Canada material (and I do mean basic), the two jurisdictions I know the most about © (except the US).

Yeah, I realised this only at then end of my last (long) reply. I think it was the cause of any inefficiency in our interaction :). I'm going to be pretty busy in the next few days, but I might come back and try and do some more research on these questions (apparently Sterling's "World Copyright Law" is quite good for these comparative issues). --Pde 07:54 May 13, 2003 (UTC)

I've seen that book I'll try to track down a copy when I get a chance here. Alex756 11:23 May 13, 2003 (UTC)

-- Pde 02:29 May 13, 2003 (UTC)

— Alex756 04:03 May 13, 2003 (UTC)

— I've removed the comments, they are all on this page, and User:David Stewart a Australian IP litigator promises to review our comments and provide valuable input. Alex756

Hi guys. I'll go through this stuff on this page over the weekend. I amended the section on ownership of statutes in Australia - the Crown owns copyright over federal statutes, and the states over state legislation. I'll flesh it out otherwise. - David Stewart 01:48 16 May 2003 (UTC)