Debunking the Fair Use vs. Fair Dealing Myth: Have We Had Fair Use All Along?

Eleven decades ago, on December 16, 1911, the Imperial Copyright Act of 1911 received royal assent, codifying fair dealing for the first time, and thus explicitly recognizing it, in the imperial copyright legislation. Ten years later, the same fair dealing provision would appear in the Canadian Copyright Act and would remain the basis of the current fair dealing provisions. Tragically, what was supposed to be an exercise in the codification of a dynamic and evolving common law principle, usually referred to as “fair use,” ended up – with a few notable exceptions – in a hundred years of solitude and stagnation. Misinterpreting the 1911 Act, some courts and commentators in the UK and other Commonwealth countries adopted a narrow and restrictive view of fair dealing. Meanwhile, in the United States, fair use, the same common law concept that English and American courts developed, remained uncodified for most of the twentieth century. When the United States finally codified fair use in 1976, Congress left no doubt that the codification would not alter its common law basis and ought not hinder its flexibility and adaptability. Thus, toward the end of the twentieth century, a noticeable split in Anglo-American copyright law emerged: an open, flexible, and general fair use regime in the United States, and a seemingly rigid and restrictive fair dealing tradition in the Commonwealth countries.