Regulating Fairnessin Copyright Law

Prosiding Seminar Hasil Penyelidikan Sektor Pengajian Tinggi 2013 33 Regulating Fairnessin Copyright Law Ratnaria Wahid & Mas Juliana Mukhtaruddin ABSTRACT he copyright system grants copyright owners with the opportunity to control the ways in which his/ her copyrighted material may be used or exploited for proit. To ensure that the copyright system does not support monopoly by the copyright owners, the law provide an exception to copyright protection, particularly by allowing “fair dealing”, which generally permits free use of copyright works as long as it does not harm or prejudice the interests of copyright owners. Nevertheless, the inal determination of what constitute fair dealing is mostly let to the users and ultimately to the courts should there arise any problem of interpretation and application. his problem thus leads to difering interpretations on fair dealing which consequently lead to users being let with a feeling of uncertainty as to what acts are legal. his problem will also lead the users to either being too cautious in applying the copyright exceptions in their research and study or, conversely, adopting a lackadaisical attitude when using copyright works. hus, in order to achieve mutual consensus on what is considered as ‘fair dealing’ for both users and owners of copyright works, the virtue, aim and objective of the ‘fair dealing’ exception must be clearly understood. Only through this understanding the state will be more balance in their treatment to both users and owners. A lexible and broad interpretation on ‘fair dealing’ will further ensure that the ‘fair dealing’ exception will not be underutilized and approached rigidly and restrictively by the domestic courts of many countries. Keywords: fair dealing, copyright law, Malaysia, United Kingdom, Australia INTRODUCTION he scope and term of copyright protection has been consistently and increasingly extended in favour of the copyright owners thereby curtailing free access to copyright works (Dutield & Suthersanen 2008,p.282). he law nevertheless provides that the rights given to the copyright owner have to be balanced with certain exceptions and limitations. he purpose of integrating exceptions and limitations in copyright law is speciically to stress the importance of utilizing information as a foundation for economic growth and for the development of creativity and science, ultimately for the beneit of all (Okediji 2003). Despite this, theexceptions and limitations made by countries, particularly the‘fair dealing’ exception provisionsare viewed as abstract, imprecise and uncertain, and this causes it to be interpreted diferently in diferent jurisdictions and in diferent contexts. Hence despite the intended lexibilities allowed by the international copyright system, it has been claimed to be underutilized and approached rigidly and restrictively by the domestic courts of many countries. 344 Jilid I | Sains Sosial dan Kemanusiaan Copyright Copyright is a branch of intellectual property rights that automatically grant authors (creators) the right to prevent copying (Philips, Durie, & Karet 1997)as well as the right to rent out or lend, to publish or issue copies of the work to the public, to perform, show or play the work in public, broadcast the work or include it in a cable programme service, or to make an adaptation of the work. hese rights may also be bought or sold (like property) or be assigned or licensed for a speciied period (Garnett, James, & Davies 1999). By giving all these exclusive rights to the copyright owner, all other people are restricted from copying, renting, lending, issuing copies of the work to the public, perform, broadcast, show or adapt the work without the consent of the copyright owner. Here, the copyright owner or his/her exclusive licensee therefore has the right to bring proceedings before the courts. Any infringement or secondary infringement of copyright law could subject the alleged perpetrator to criminal liability. his gives the copyright owner the opportunity to control the ways in which his/her copyrighted material may be used or exploited for proit. Copyright protects works which are generally the expression of creative authorship (Garnett, James, & Davies 1999), which includes original artistic, dramatic, literary and musical works, sound recordings, ilms (and videos), broadcasts (including cable and satellite broadcasts), and the typographical arrangements of published editions of a literary, dramatic or musical work. hese works may either be published or unpublished or in an electronic format. hus, letters, e-mail messages, works included in an electronic database (CD-ROMs) and material on websites are also protected (Sandy 2004). Copyright however does not protect ideas that are in general circulation, having been expressed in written and other forms frequently and over a long period of time, are also not subject to copyright claims, as decided in Kenrick & Co. v. Lawrence & Co., (1890) 25 Q.B.D. 99(Davies & Harbottle 2007). he philosophy behind the copyright system is that whoever expends skill and labour to create, as well as taking the inancial investment risks, in order to produce and market a material, should be allowed to reap the beneits. Accordingly, s/he should have the right to be protected so that there is an incentive to create materials for the betterment of the public. Copyright presupposes that the guarantee of protection and the possibility of controlling and being paid for the exploitation of copyright works would encourage authors and more learning materials would be created for the beneit of the wider community (Burkitt 2001). In providing the rationale for copyright protection, WIPO (2011) expressly stated that: “Copyright and its related rights are essential to human creativity, by giving creators incentives in the form of recognition and fair economic rewards. Under this system of rights, creators are assured that their works can be disseminated without fear of unauthorized copying or piracy. his in turn helps increase access to and enhances the enjoyment of culture, knowledge, and entertainment all over the world.” However, there is also a social requirement that the works should be published and disseminated as wide as possible for public at large (Davies 2002; Garnett, James, & Davies 1999). It has rarely been advanced that the author’s right to control the dissemination of a work is detached from appeals to the public interest (Cahir 2005,p.3). However, although private rights were grounded 345 Prosiding Seminar Hasil Penyelidikan Sektor Pengajian Tinggi 2013 for the purpose of public interest, the public interest background has been forgotten, and those enforcing them, have ended up believing that the rights were granted exclusively for the purpose of protecting their individual private interests. In the midst of several judicial litigations, this public dimension of copyright, was later diverted into solely protecting the interest of the authors and publishers (private interests) (Cahir 2005). hus, the concept of copyright protection for the private interest aimed for the beneit of the public is confusing, and has led to some believing that the purpose of copyright law is to advance the non-individuated public interest, whilst others think that the purpose of copyright law is to secure the private interests of authors and publishers (Cahir 2005, p.6). Exception to copyright law Like any type of private property right, copyrights are not absolute rights. Even those countries most committed to the advancement of authors’ rights recognize the need for restrictions or limitations upon these rights in particular circumstances (Hugenholtz 1997,p.5). Coexisting with the rights of authors and publishers to control and protect their works so that there is an economic incentive to create and disseminate, there is also the requirement that such rights be balanced to the extent that society can also beneit from the works (Marsnik 2004, p.111). Numa Droz (1986,p.105), the President of Switzerland, stated during his closing address at the irst of the International Berne Drating Conferences of 1884: “Whereas, for one thing, certain delegations might have wished for more extensive and more uniform protection of authors’ rights, due account did also have to be taken of the fact that the ideal principles whose triumph we are working towards can only progress gradually on the so-varied countries that we wish to see joining the Union. Consideration also has to be given to the fact that limitations on absolute protection are dictated, rightly in my opinion, by the public interest. he ever-growing need for mass instruction could never be met if there were no reproduction facilities which are at the same time, should not generate into abuses.” Copyright limitations can be in the form of permitted use subject to certain conditions (exemptions), compulsory licences, statutory licences or mandatory collective administration of author’s rights (Guibault 2002,pp.20-21). Under these exceptions and limitations, the users do not have the right to copy, as rights belong to authors, but merely given the permission to copy (Okediji 2006). hus, there is still a risk of such acts being challenged and being defended in court. he international copyright instruments, particularly the Berne Convention and the TRIPs Agreement, do provide certain lexibilities or exceptions to copyright law, designed to enable countries coming from various social and economic backgrounds to adopt the laws that may best suit their interests and capacities. Under these exceptions, the use of copyright works can be free, provided the situation falls within the scope of the exceptions provided in the relevant statute. his usually refers to the requirement of “fair dealing”, which generally means that there is general permission to copy as long as it does not harm or prejudice the interests of copyright holders. 346 Jilid I | Sains Sosial dan Kemanusiaan Fair dealing and its problem he Copyright law in the UK, Australia and Malaysia similarly allow “dealing” with copyright materials for the purpose of research, provided that the dealing is “fair”. Ironically, none of the countries actually deine “fair dealing”.Fair dealing can be deined (Tawik 2005,p.1) as: “a formulation known to jurisdictions that evolved in the British common law copyright system and is designed to permit reasonable access to copyright works for purposes deemed to be in the public interest, such as research or study. It is structured as a free use exception, namely one not requiring prior permission or a royalty payment for the use”. he general word “dealing” confers a broad range of rights on users, whether to copy, translate, adapt, or communicate copyright works when conducting research or private study. In CCH Canadian v. Law Society of Upper Canada [2004] SCC 13, the Supreme Court viewed that, “[t]he word ‘dealing’ connotes not individual acts but a practice or system”. he dealing of copyright works must also be “fair”, although countries do not generally deine what “fair” really means. Instances of fair dealing include copying for private study, which should be purely personal and should only beneit the person himself, copying for research that has non-commercial purposes (copies must however be acknowledged as long as it is practicable), copying for the purposes of criticism and review, for news reporting, and for the purpose of education and libraries; all these acts (subject to further conditions) are not considered as infringing copyright. he determination of which acts actually constitute copyright infringement is normally let to the discretion of the courts to decide on what is best, according to the circumstances of each case.he problem of leaving the responsibility to determine whatconstitutes‘fair dealing’ to the courts leads to difering interpretations on fair dealing. his consequently lead to users being let with a feeling of uncertainty as to what acts are legal. his problem will lead the users either being too cautious in applying the copyright exceptions in their research and study, or, conversely, adopting a lackadaisical attitude when using copyright works. Diferent ways to determine fair dealing Diferent countries choose to determine what constitute fair dealing diferently, depending on the policies of their government, the interest of the stakeholders as well as the provisions in their Copyright Act which provides guidelines for the matter. Australia Australia lists certain guidelines for courts when determining whether an act may constitutes “fair dealing” (S. 40(2) and S. 103C(2) of Copyright Act 1968). he factors for determining what constitutes “fair dealing” include the purpose and character of the dealing, the nature of the work, the possibility of obtaining the work within a reasonable time at an ordinary commercial price (e.g., it may be fair to copy more than a reasonable portion of a literary work if it is not available commercially, i.e. an out-of-print book), the efect of the dealing on the potential market for, or value of, the work, and, in the case where part only of the work is copied, the amount and substantiality of the part copied in relation to the whole work (S. 40(2)). Hence, the determination of whether a particular use is “fair” is let to the users themselves, and ultimately to the courts should there arise any problem of interpretation and application. 347 Prosiding Seminar Hasil Penyelidikan Sektor Pengajian Tinggi 2013 he fair dealing exception for research and study in the Australian law is limited to additional conditions such as only a reasonable portion of a work or adaptation can be reproduced (S. 40(5)). Further rules are tabled as to what constitutes a “reasonable portion”, depending on whether the work is a published edition of a literary, dramatic or musical work or is in electronic form (S. 40(5)). For example, with regard to literary works (excluding articles in periodicals), dramatic works and sheet music, a “reasonable portion” is deined as containing in an edition at least 10 pages a) not exceeding, in the aggregate, 10% of the number of pages, or b) one chapter. Despite various provisions for assisting the Australian courts to decide on the application of the concept of fair dealing in Australia, uncertainty still exists. For example, in TCN Channel Nine Pty Ltd v. Network Ten Pty Limited [2001] FCA 108 at 108, Channel Nine claimed that Channel Ten had infringed Nine’s copyright by showing extracts from twenty of its broadcast programs. Channel Ten argued that the parts taken were insubstantial and could not constitute infringement, and that even if that were the case, the use could be excused on the basis of fair dealing. When considering whether the use can be considered to be fair dealing for the purpose of criticism or review, Conti J. agreed with the relevant authorities that “fair dealing involves the questions of degree and impression; it is to be judged by the criterion of a fair minded and honest person, and is an abstract concept; fairness is to be judged objectively in relation to the relevant purpose...” Although holding that the works were insubstantial, Conti J. reached a diferent conclusion as to whether the use was “fair” when he applied the principle to all twenty segments used by Channel Ten. When the case was brought to the Federal Court [2002] FCAFC 146 (unreported, Sundberg, Finkelstein and Hely JJ, 22 May 2002), it was decided that there had indeed been infringement of copyright works, however the three judges sitting together on this case were unable to agree about whether the use of each particular extract was a case of fair dealing. When the case was inally decided for the ith time and ater four years, [2004] HCA 14 (11 March 2004) the scope and application of the fair dealing defenses still remain unresolved (Zwart, 2005). In short, although Australia took the initiative to list the factors to consider when assessing what is “fair”, in some cases, it remains diicult to determine the level of “fairness” that would actually fall under the exception. Nevertheless, by providing a detail guidance on the factors to consider when determining the issue of “fair dealing”, this emphasizes the role of the legislature as the primary method of law making, while the judges” role is only one of the interpretation, not law making, when it comes to the interpretation of statutes. Determining what is “fair” under a particular situation is a still a subjective issue. A lexible interpretation may assist researchers, students and academics in undertaking research work while a narrow approach to the interpretation of “fair dealing” may lead to acts constituting an infringement of copyright law. Hence, this is still a grey area, and uncertainties abound in this issue. United Kingdom he UK expressly limits the fair dealing exception by requiring that it does not result in copies of substantially the same material being provided to more than one person at substantially the 348 Jilid I | Sains Sosial dan Kemanusiaan same time and for substantially the same purpose (S. 29(3)(b) of Copyright, Designs and Patents Act 1988). In other words, one is allowed to make a copy of an item but restricts the practice of academics and researchers to distributing it to others in order to gain feedback to their research or presentations. In the English Court of Appeal decision, Hubbard v. Vosper [1972] 2 QB 84 at p. 94, the defendant published a book which reproduced much material written by L. Ron Hubbard, the founder of Scientology. Here, Lord Denning acknowledged the diiculties in deining fair dealing but outlined certain aspects to consider in determining what can be considered as fair. In this case, Lord Denning considers “fair dealing” as a matter of degree and impression. He questions how much has been taken, whether the work is used to compete with the copyright owner’s work, and whether the work taken is proportionate to what the author originally produced. He argues, however, that all these factors should be applied lexibly, depending on the type of work as well as the manner of reproduction. Megaw LJ. in the same case even viewed that in certain circumstances, it might be permissible to reproduce the whole work, particularly when the work is short. Over the years, the term “fair dealing” has been interpreted narrowly by the Courts (Sims 2010). In Newspaper Licensing Agency Limited v. Marks & Spencer Plc, [1999] E.M.L.R. 369, Lightman J. opined that although the defendant’s newspaper cuttings were generally only small parts of the newspapers as a whole, the defendant’s conduct did not constitute “fair dealing”. “here is a wholesale copying of material which goes far beyond what is necessary to report current events to M&S personnel.” In University Of London Press, Limited v. University Tutorial Press, Limited [1916 U. 119.] p. 613, the judge held that the assertion that the republication of a copyright work was “fair dealing” because it was intended for the purposes of private study, and that the reason for producing a book of questions together with their answers was only for the use of students, in neither case fell within the description of “fair dealing”. hese cases show that what is fair is a subjective matter, and depends on the extent the work copied or added. he pattern of judges failing to take adequate account of the users’ interests is detectable, and it has been argued that the judiciary is responsible for the overly restrictive approach taken towards the copyright exceptions in the UK (Burrell 2001,pp.387-388). hus, legislative reform for a more general exception alone is not enough without a change in the attitude of the judiciary (Burrell 2001,pp.387-388). As no mention is made on the amount of copyright works that can be copied under the statutory exceptions, certain institutions in the UK took some initiative to provide some guidelines in determining what constitutes “fair dealing”, for example Cardif University (2010). In the electronic environment, the Joint Information Systems Committee and he Publishers Association (1998) provide a set of guidelines; this is a result of the consensus views of a Working Party on the application of fair dealing in the Copyright, Designs and Patents Act and associated Statutory Instruments, to activities in Higher Education that involve the creation or use of electronic materials, as summarized in its webpage (JISC 1999). For copying beyond the boundaries set forth by these guidelines, universities and schools in the UK need to obtain licenses from the UK Copyright Licensing Agency (CLA) for their staf and students(Copyright Licensing Agency Ltd 2011). 349 Prosiding Seminar Hasil Penyelidikan Sektor Pengajian Tinggi 2013 Fair Dealing in the Malaysian Copyright Law Previously, the Malaysian Copyright Law does not provide on the detail criteria to determine fair dealing. Fair dealing is only mentioned in general in Article 13(2)(a) of Copyright Act 1987 and thus it is let to the courts to determine what acts may constitute fair dealing. However, recently, Under the Malaysian Copyright Act 1987 (Amendment) 2012, Section 13(2)(a) was amended to provide as follows: Notwithstanding subsection (1), the right of control under that subsection does not include the right to control - (a) the doing of any of the acts referred to in subsection (1) by way of fair dealing including for purposes of research, private study, criticism, review or the reporting of news or current events: Provided that it is accompanied by an acknowledgement of the title of the work and its authorship, except that no acknowledgment is required in connection with the reporting of news or current events by means of a sound recording, ilm or broadcast; (2A) For the purposes of paragraph (2)(a), in determining whether a dealing constitutes a fair dealing, the factors to be considered shall include – (a) he purpose and character of the dealing, including whether such dealing is of a commercial nature or is for non-proit educational purposes; (b) he nature of the copyright work; (c) he amount and substantially of the portion used in relation to the copyright work as a whole; and (d) he efect of the dealing upon the potential market for or value of the copyright work Clause (2A) has just been added in 2012, thereby providing certain yardstick for Malaysian courts to use as guidelines in deciding whether certain acts may be considered as fair dealing and thus excluded from copyright implications. Nevertheless, the efect of this provision when applied in Malaysian perspective is still yet to be seen. Although a detail factors of consideration has be outlined for the users and the courts to adhere to, as evident from the Australian and UK experience, the matter of determining whether an act constitute ‘fair dealing’ is still a matter of debate. What is fair to some people might not be considered as fair by another, depending on the interest at stake. Importance of understanding the virtue of fair dealing provision Understanding the virtue, aim and objective of the ‘fair dealing’ exception is crucial in order to achieve mutual consensus on what is fair for both users and owners of copyright works. Both parties must understand that exceptions imposed on the exercise of exclusive rights under copyright law such as ‘fair dealing’ can be based on many considerations such as for defence of fundamental rights, limitations based on competition law considerations, limitations based on public interest consideration and limitations based on market failure (Guibault 2000). he ‘fair dealing’ exceptions to copyright in respect of education for instance, are based on the major public interest considerations, such as the promotion of education and culture (Guibalt 2000, p.137). 350 Jilid I | Sains Sosial dan Kemanusiaan Making works available for public interest has a lot of advantageous since its availability could enhance both pleasure and proit, as it can decrease the costs for further innovation, open the opportunity for exchange of ideas, networking, public funding and support (Picciotto 2002,p.1). Moreover, it is the interest of authors to disseminate and make known his or her creations. here is also a need for ready availability of some works in which a public interest justiies overriding the private rights of authors in their works in these particular circumstances regardless of the author’s consent, but subject to the payment of appropriate remuneration (Ricketson 2003,p.4). he ‘fair dealing’ exceptions are also meant to prevent monopoly control (Sterling 2003). While suicient protection of copyright works is important to encourage commercialization, it is vital that the extent of monopoly is curtailed and optimum social beneit is ensured due to the fact that “intellectual property right are exploited not by authors or inventors, whose creativity they are supposed to reward, but by large information-based corporations” (Picciotto 2002,pp.1-2). Appropriately designed limitations and exceptions may act as a mechanism of access and “contribute to the dissemination of knowledge, which in turn is essential for a variety of human activities and values, including liberty, the exercise of political power, and economic, social and personal advancement … open up rapid advances in information and communication technologies that are fundamentally transforming the processes of production, dissemination and storage of information” (Hugenholtz & Okediji 2008,pp.10-11). To this extent, it is pertinent to appreciate the view taken by the Supreme Court of Canada in CCH Canadian v. Law Society of Upper Canada [2004] SCC 13, that it is important that the purpose of the dealing is not interpreted restrictively, but it may constitute one of the factors to be taken into account in determining whether or not the dealing is fair. Yet, a permitted purpose does not ipso facto validate the infringing act, the dealing with respect to the copyright work must still be fair. As observed in CCH Canadian v. Law Society of Upper Canada [2004] SCC 13, at page 663, “… some dealings, even if for allowable purpose, may be more or less fair than others; research done for commercial purposes may not be as fair as research done for charitable purpose.” Hence, to reconcile conlicting interests of various stakeholders, the understanding of the real and true objective of copyright system as well as the exceptions provided into it is pertinent and crucial to achieve a balance between the copyright owner’s interest in receiving adequate reward and the public interest in accessing works. One should always realize the importance of utilizing information as a foundation for growth and expansion of creativity and science for the beneit of all. CONCLUSION Copyright protection is not solely about protecting owners’ rights per se, rather the establishment of copyright law is also about beneiting the users or the public interest. It is plausible that countries do allow exceptions to copyright protection by way of permitting ‘fair dealing’ for speciic purposes 351 Prosiding Seminar Hasil Penyelidikan Sektor Pengajian Tinggi 2013 such as for research, education and etc. Accessing resources is always a dilemma when one has insuicient funds, especially in the educational context, as there is always a battle between the copyright owners and the users. Most of the time, users have to comply with owners’ demands, and this is why the law needs to provide clear provisions relating to exceptions, ones that can balance the negotiating process at least, particularly for the purpose of education. It is an acceptable norm for diferent states to apply diferent level of copyright protection although such is guided by the international conventions or bilateral or multilateral agreements. But one has to remember that what is considered fair in Australia or United Kingdom; develop countries which have a lot to ofer its citizens in terms of information, technology, facilities, support, inancial advantages and etc, may not be considered fair to Malaysian circumstances. Hence, it is necessary for Malaysia to develop its own approach, taking into consideration its international treaty obligations as well as its national particularities. Cases from diferent countries has shown that users and courts will unavoidably face diiculties when determining what is considered a ‘fair dealing’, albeit the guidelines provided in the statute. It is important that users are very clear about their rights so that users may not shy away from using whatever works that may beneit them and the community as a whole. It is also important that users are clear about their rights so that the rights of the copyright owners would not be disregarded or overused without fair or reasonable reward nor acknowledgment.One way to balance this is by understanding the virtue, aim and objective of the fair dealing provision which is necessary in coming to mutual understanding and consensus on what is fair especially when it relates to access to knowledge and information. his is especially important as research and technology is pertinent in development of a society. New challenges will arise in the future, and the balancing role of copyright exceptions and limitations will be very much needed to face the coming challenges (Akester 2010,p.372). 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