A Law and Economics Analysis of Fair Use Differences Comparing the US and UK

Abstract

This paper examines fair-dealing and fair-use copyright exceptions in terms of their economic properties. A particular question in the United Kingdom is whether there would be economic advantages, in terms of promoting economic growth through the encouragement of innovative creative work, from moving to a standard substantially similar to the fair-use copyright exception doctrine1 that can be accepted by the courts in the United States as a general defence to a claim of copyright infringement. Related questions concern difficulties that might be encountered in making such a move and how these could be handled. The UK's 'fair dealing' is conventionally regarded as giving much more narrowly defined defences, rather than giving a general defence in an action for infringement. In both countries, fair use or fair dealing coexists alongside other specific copyright exceptions, which may be in place for a variety of reasons, e.g. providing Braille copies for blind people. The paper is not intended to deliver a recommendation but aims to lay out some alternatives and provide an economic commentary.

Keywords: law and economics, copyright exceptions, fair use

JEL Classification: K11, O34