What is fair dealing?
Under the Singapore Copyright Act, a certain amount of copying can be permissible, subject to the fair dealing provision under Section 35. In this provision, there are 5 main non-exhaustive factors that are used to determine if a copyright infringement can be considered as “fair dealing”:
- The purpose and character of the dealing, including whether such dealing is of a commercial or is for non-profit educational purposes;
- The nature of the work or adaptation;
- The amount and substantiality of the part copied taken in relation to the whole work or adaptation;
- The effect of the dealing upon the potential market for, or value of, the work or adaptation; and
- The possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price.
Therefore, if reasonable attempts have been made to obtain a licence from the copyright owner to no avail, and the amount that was reproduced was not substantial, and was for non-profit educational purposes, the fair dealing defence is likely to apply.
In addition, there are two other fair dealing provisions for specific purposes: fair dealing for research & study, and fair dealing for criticism & review. These fair dealing provisions can also be used in conjunction with the above 5 factors.
Fair dealing for research and study
Section 35(3) of the Copyright Act provides a defence for fair dealing for the purpose of research or study. The copying of a reasonable portion of a literary work for the purposes of research or study is considered a fair dealing.
A ‘reasonable portion’ of a literary work is defined as:
- 10% of the number of pages, if the work is not divided into chapters;
- The whole or part of a single chapter (even if exceeding 10% of the number of pages), if the work is divided into chapters; or
- 10% of the total number of bytes, if the work is in an electronic medium and has no pages.
Fair dealing for criticism and review
Although the term “criticism or review” is not defined in the Copyright Act, this has been interpreted by the Courts to involve some element of evaluation or judgment on the merits of the work.
As such, it may be possible to rely on this specific fair dealing provision when using copyrighted material if the purpose of use of the work is for criticism or review.
For example, you may use a journal article in your assignment if you are critiquing or analysing that article. Do note, however, that in order to rely on this defence, you will need to make sufficient acknowledgment of the work. This means that you would have to identify the work by its title or other description and the author.