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Fairness in Copyright Law: An Anglo-American Comparison

46 Pages Posted: 29 Sep 2017  

Ilanah Simon Fhima

Institute of Brand and Innovation Law, Unversity College London

Date Written: September 27, 2017

Abstract

Fairness stands at the crossroads of copyright law. The concept is present in the exceptions to copyright in both the U.S. and the U.K., seeking to balance the interests of copyright owners and users, as well as the needs of the public in receiving information. 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 the legislator, 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, by 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 open to U.K. judges.

Keywords: Copyright, Exceptions, Fair Use, Defences, Defenses, US, UK, Intellectual Property

JEL Classification: K3, K30

Suggested Citation

Simon Fhima, Ilanah, Fairness in Copyright Law: An Anglo-American Comparison (September 27, 2017). Santa Clara Computer and High Technology Law Journal, Vol. 34, 2017. Available at SSRN: https://ssrn.com/abstract=3044047

Ilanah Simon (Contact Author)

Institute of Brand and Innovation Law, Unversity College London ( email )

Gower St
London WC1E OEG, WC1E 6BT
United Kingdom

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