Fair Dealing

This has two meanings

  1. In Copyright Law the term used to describe a free speech-based defense similar to fair use. It allows the limited use of copyrighted materials or a trademark for purposes of research, private study, reporting current events, and criticism and review. Fair dealing in the copyright context can be a difficult defense to assert and will usually not be interpreted so as to allow more than use of a minority of a copyrighted work. It also may depend on a showing that the user had no other way to obtain the work for the purpose concerned. The defense can also be undermined if the dealing results, or was intended to result in profits primarily derived from the taken work (profit is broadly defined as any revenue resulting from the dealing) or if the “taking” is substantial or total (i.e., the whole of a copyrighted work rather than small parts is used). A number of legal systems have no clear recognition of the concept of fair dealing, e.g., Germany, France, the Netherlands, Spain, Sweden, and Switzerland, and in those countries where it exists in the scope and application of the defense is highly variable. See also Fair Use, Incidental Copying.
  2. In contract and commercial law the term is usually used with the term “good faith” as in the “implied obligation of good faith and fair dealing.” Although fair dealing is regarded as synonymous with good faith, arguably it means something different, and precludes the use of fraud, fraudulent misrepresentation or concealment with respect to any substantial contract terms (price, quantity, delivery and shipment, etc.), use of coercion or unfair economic pressure and abuse of disparities in economic position, avoiding contractual duties, or illegal conduct in fulfilling contractual obligations.

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