On Some Trends in the Development of the Concept of Fair Use in Modern Copyright Law of Common Law Countries

Abstract

Kalyatin Vitaly - Senior Researcher, Information Law Laboratory, National Research University Higher School of Economics, Professor of the Russian School of Private Law, Candidate of Juridical Sciences. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: kalvit@yandex.ru

The article is devoted to “fair use”/ “fair dealing” doctrine, which in US/UK legal systems permits borrowing of portions of a work and its further use without necessity to obtain consent of the copyright owner. This mechanism provides flexibility in the legal systems and exists to correct “market failures”. However, it is extremely complicated and causes different practical problems. However, these models are unstable and experience serious changes relevant not only to practice but evaluating the general trend of the further development of copyright. US legal system is at the stage of changing paradigm – transfer from interpreting copyright as a special model codifying a compromise for the sake of special public purposes to recognizing the right to entire control of the copyright holder for using a work. In turn, the UK seeking to remove the threat caused by fair use as to business of copyright created the situation in which obstacles for the circulation of information hinder economic development and modernization of the doctrine has got evident drawbacks. However, the attention drawn by the UK cabinet to various narrow aspects of fair dealing has shown recently that widening the doctrine in the UK will not be significant, which would be if the changes were taken only to the extent of which inevitability is recognized by the business community which is conservative. Each of the countries moves its own way but both strive for concretization of terms and conditions of fair use which means a brand-new stage in the development of these doctrines.