This can be contrasted with the United States doctrine of fair use, which provides a general defence rather than rigid and specific categories of acceptable behaviour.
Instead, a more objective test is used, to avoid providing "any encouragement to the notion that all that is required is for the user to have a sincere belief, however misguided, that he or she is criticising a work or reporting current affairs".
This takes into account a number of things, and due to the freedom of speech provisions under the Human Rights Act 1998 is deliberately intended not to be based on rigid and inflexible tests.
If the copyrighted work had not been "made available to the public" at the time, this will count against the use being fair, and makes the defence on the grounds of criticism and review "unavailable".
Consequences are also a factor; if, as in Hubbard v Vosper,[10] the parties to the case are competitors and infringing on the work acts as an alternative to purchasing the original, this will limit the fairness of the dealing.
[12] In some situations, the fair dealing defence must be accompanied by "sufficient acknowledgement", where the author and the original work must be identified either by the title or some other description.
Although the precise distinction between research and private study has not historically been important, modern case law states that there is a difference.
In other words, an academic cannot print off multiple copies of a work for students and then rely on the fair dealings exception.
The courts will interpret "criticism or review" liberally, as in Newspaper Licensing Agency v Marks & Spencers plc, and as such the criticism or review can include the thought or philosophy of the work, as in Time Warner v Channel 4,[18] or the social and moral implications of the work, as in Pro Sieben Media v Carlton Television.
Although Prince Charles had distributed copies of his diary to 75 people, this clearly did not make the journals available to the public, as each recipient was under strict instructions to keep the work confidential.
Bently and Sherman suggest that in relation to fair dealings for criticism or review, the most relevant aspects considered by the court are likely to be the quantity taken, the method of acquisition and the consequences.
[21] Under Section 30(2), fair dealing using any work for the purpose of reporting current events, with sufficient acknowledgement, is a valid exception to copyright.
Photographs are excluded, however; Cornish, Llewelyn and Aplin write that this is "in order to preserve the full value of holding a unique visual record of some person or event".
[26] As of 1 October 2014, Section 30A provides for fair dealing as a defence in cases where the infringement was for the purpose of caricature, parody or pastiche.
[27] The Intellectual Property Office suggests that a "parody" is something that imitates a work for humorous or satirical effect, a "pastiche" is a composition that is made up of selections from various sources or one that imitates the style of another artist or period, and that a "caricature" is something that portrays its subject in a simplified or exaggerated way, whether insulting or complimentary and whether for a political purpose or solely for entertainment.