Copyright Law in New Zealand: Should We Adopt Fair Use?

Abstract

Copyright exceptions limit the rights of copyright owners to control the reproduction, distribution, performance and display of their works. Fair use and fair dealing are models of statutory copyright exceptions that developed from the same body of common law in the United Kingdom. Fair use is found in the United States of America and several other jurisdictions. It involves an assessment of the fairness of the use of a copyrighted work and is characterised by its inherent flexibility. Fair dealing is found in a number of Commonwealth jurisdictions, including New Zealand, and also involves an assessment of the fairness of the use. However, in order for a use to constitute a fair dealing, the use must first fall within the scope of certain enumerated purposes. Accordingly, fair dealing is more restrictive than fair use, less able to adapt to new technologies and is more likely to limit uses of copyrighted works that do not harm copyright owner’s markets. In response to rapid advances in digital technology a number of fair dealing jurisdictions have recently expanded their copyright exceptions with some, such as Australia and Ireland, recommending the adoption of fair use. The advantages of fair use are numerous and extensive. These advantages include that fair use promotes the objective of copyright, is flexible and technology neutral, is sufficiently certain, aligns with public expectations and uses of copyright and complies with international treaties and trade agreements. Accordingly, this paper argues that New Zealand should adopt a fair use exception into its copyright law.