Distinguishing the fair use and fair dealing doctrines in copyright law—much ado about nothing?

Abstract

It is often assumed and taken for granted that there is a gulf separating the fair use and fair dealing doctrines in copyright law arising principally from the ‘open v closed’ distinction that is made of the statutory schemes in the respective fair use and fair dealing jurisdictions.
It will be argued in this article, after a comparative and comprehensive study of the case law and of the various (overlapping) fairness factors, that this distinction merely reflects a difference as to legislative form, rather than the substance of the fairness analysis that may ultimately bear on the outcome of a fairness determination.
Both doctrines, in actuality, are far more aligned than may be immediately apparent and this is where having recourse to US fair use jurisprudence—including the infamous transformative use doctrine—in appropriate cases may well assist in a court’s assessment of fairness in the fair dealing context.

This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://dbpia.nl.go.kr/pages/standard-publication-reuse-rights)

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