University of Botswana Law Journal - PULP

170 UNIVERSITY OF BOTSWANA LAW JOURNAL DECEMBER 2010
The raison d’être for such an exception is that an infringing use
which by allowing will cause greater public benefit than by denying it, must
be allowed. 11 Such an exception therefore is included so as to allow members
of the public to use copyrighted work fairly without the requirement of a
consent or licence from the copyright-holder. In very broad terms, therefore,
the exception seeks to allow fair use of copyrighted material because curbing
it would mean impinging on the fundamental right to freedom of speech and
expression. In other words, this exception is to balance two competing
interests – on the one hand, the monopoly of authors which acts as an
incentive to create, and on the other, that such a monopoly must not come in
the way of creative ability of others or the right of the public to build upon
previous works. 12
2. “FAIR USE” AND “FAIR DEALING” COMPARED
As already stated, fair dealing of copyrighted work does not amount to an
infringement under the Copyright Act. Although it has been generally assumed
that fair dealing is roughly equivalent to its American counterpart of fair use,
the latter has a wider scope in that it is not restricted to specific purposes. 13
According to Section 107 of the US Copyright Act, 1976, there are four factors
for determining ‘fair use’, viz., (i) purpose and character of work; (ii) nature of
copyrighted work; (iii) amount and substantiality of the portion used; (iv)
effect on market value of the original. 14 On the other hand, fair dealing is
restricted to only the purposes allowed in the Act, viz., ‘private use including
research’; criticism and review; and reporting current events.
The American concept of fair use has been contested on the ground
that it is not in line with the TRIPS requirement 15 confining the limitations or
exceptions to the Berne three-step test, 16 which is that reproduction is
permissible only in certain special cases and that it must not conflict with the
normal exploitation of the work and must not unreasonably prejudice the
legitimate interests of the copyright-holder. Now, the charge leveled against
11 Newby, T.G., “What’s Fair Here is Not Fair Everywhere: Does the American Fair Use Doctrine Violate
International Copyright Law?” 51 Stan. L. Rev. 1633 (1999). See also: Sony Corporation v Universal
Studios, 464 US 417, 479-480 (1984). There are jurists who have justified the fair use doctrine in a
Lockean framework. See: Damstedt, B.J., “Limiting Locke: A Natural Law Justification for the Fair Use
Doctrine”, 112 Yale L.J. 1179 (2003). Some authors also argue that fair use doctrine does not in any way
protect freedom of speech, see: Lockridge, W., “The Myth of Copyright’s Fair Use Doctrine As a
Protector of Free Speech”, 24 Santa Clara Computer & High Tech. L.J. 31 (2007).
12 Kartar Singh v Ladha Singh, AIR 1934 Lah 777; Eastern Book Co. v Navin Desai, AIR 2001 Del 185.
13 Griffiths, J., “Preserving Judicial Freedom of Movement–Interpreting Fair Dealing in Copyright Law”,
[2000] IPQ 164. See also: Copinger and Skone, J., Copyright, Volume I (Sweet & Maxwell, London: 15 th
edition, 2005) 481.
14 For a good analysis of American law on fair use, see: Fisher III, W.W., “Reconstructing the Fair Use
Doctrine”, 101 Harv. L. Rev. 1659 (1988).
15 Article 13, TRIPS (Marrakesh Agreement), 1994.
16 Article 9(2), Berne Convention for the Protection of Literary and Artistic Works. See: Heide, T., “The
Berne Three-Step Test and the Proposed Copyright Directive”, 21(3) EIPR 105 (1999).