stands in stark contrast to the US fair use that is based entrirely on a balancing exercise by
the court, with the legislator merely suggesting a couple of factors that need to be taken into
account in that exercise. Even the UK approach is therefore merely an example of narrowly
cicrcumscribed speciﬁc exceptions and limitation. From that perspective there is little diffe-
rence with the traditional European civil law approach and as a result moving on to fair use,
US style, would be a revolution rather than an evolution It is doubtful whether such a change
would be productive or even possible. But from a private international law perspective it is
clear that EU judges might will be called upon to apply fair use as part of the applicable law
in inernational cases. And the concept of fairness might also be applied successfully in our
existing system in order to introduce the ﬂexibility required by the fast evolving technology.
Achieving the goal of fairness requires therefore a more subtle approach than merely co-
pying fair use!
Keywords: Fair dealing, fair use, private international law, EU, copyright.
CONTENTS: I. INTRODUCTION.—II. FAIR DEALING, UK STYLE: 1. re S e a r c h a n d P r i V aT e S T u d y :
A. Research. B. Private study. C. How much can be taken? 2. re V i e W a n d c r i T i c i S m : A. The starting
point. B. Pro Sieben. C. Factors to be taken into account. D. How much can be taken? E. A work that is
available to the public. F. A summary of conditions. 3. re P o r T i n G c u r r e n T eV e n T S 4. a Fa i r co n c l u S i o n
o n Fa i r de a l i n G .—III. FAIR USE, US STYLE: 1. The To o l eX P l a i n e d . 2. a cr i T i c a l an a l y S i S .—IV. A
ROLE FOR PRIVATE INTERNATIONAL LAW: 1. ch o i c e o F l a W r u l e S a T T h e i n T e r n aT i o n a l l e V e l .
2. Th e naT i o n a l l e V e l . 3. Th e c h o i c e o F l a W r u l e : A. The creation of the right. B. The scope of the right.
C. Fair use.—V. CONCLUSION.
Fair dealing, as it is known in the UK’s Copyright, Designs and Pa-
tents Act 1988, is often referred to as the second best thing in terms of
exceptions and limitations to copyright. Fair use, US style, being the rst
best thing. That ts in well with private international law, as its choice of
law approach is also by denition the second best thing. Harmonisation
of substantive (copyright) law being the rst best thing. This article will
therefore look at the options to and implications of upgrading the second
best fair dealing to fair use and whether that approach could be done at EU
level. And it will then address the other second best option, i. e., private
international law, to explore the options and risks there of an indirect in-
troduction of fair use.
II. FAIR DEALING, UK STYLE
The Copyright, Designs and Patents Act 1988 allows «fair dealing»
with the work that attracts copyright. This means, roughly, that there will
be no copyright infringement if the use made of the work is fair. The defen-
ce only becomes relevant when the part taken from the work is substantial;
otherwise no copying arises in the rst place and any defence is without
1 Contra, but with respect, arguably wrong. «Indeed once the conclusion is reached that the whole
or a substantial part of the copyright work has been taken, a defence under (the fair dealing provisions) is
unlikely to succeed»: Independent Television Publications Ltd v. Time Out Ltd (1984) FSR 64, per Whitford
J at 75. In this view, the defence would justify only insubstantial copying, but insubstantial copying is no