Abstract:
Fairness stands at the crossroads of copyright law. The concept of fairness – which seeks to balance the interests of copyright owners and users as well as the needs of the public in receiving information— is present in the copyright exceptions in both the U.S. and the U.K. The U.S. and U.K. adopt different approaches to how the defenses should be structured, with the U.S. having an open list of which types of use can benefit, leaving this for judges to develop in response to specific fact patterns and changing conditions before them. On the other hand, the U.K. has a list, pre-determined by British Parliament, of which uses can benefit.
Both use the notion of fairness to moderate between different interests at stake, and much of this piece is devoted to documenting how the factors used to determine whether use is fair are in fact very similar. However, it is argued that the open-versus-closed list approach does make a big difference to the likely outcomes in the jurisdictions – giving U.S. courts the license to privilege the type of use over the countervailing interests of the copyright owner in a way that is just not available to U.K. judges.