Appellations of Piracy: Fair Dealing’s Prehistory

Abstract

The fair dealing exceptions contained in the Copyright Act 1911 were not a set of new exceptions created by a stroke of Parliament’s pen. Instead the Copyright Act 1911 recognised the law of fair dealing which the courts had begun to construct from 1740. This article explores the courts’ creation and development of the fair dealing exceptions beginning with abridgments, and the subsequent incorporation of the fair dealing exceptions in the Copyright Act 1911. This article argues that initially the recognition of the practices of the book trade played a significant role in the development of the fair dealing exceptions and the overriding purpose of the exceptions were to ensure the widest possible dissemination of information while still protecting authors. The inclusion of fair dealing within copyright legislation in 1911 saw Parliament finally determine that the earliest species of fair dealing, the abridgment, was a dinosaur: abridgments were not permitted to enter the new copyright world. Yet, despite Parliament claiming that it was giving effect to the judge made law, the statutory wording did not mirror precisely the court created exceptions.

Keywords: copyright, fair dealing, fair use, exceptions, abridgments, quotations, refutation

JEL Classification: K29, P14