The concept of fair usage exists within UK copyright law; commonly referred to as fair dealing, or free use and fair practice. It’s a framework designed to allow the lawful use or reproduction of work without having to seek permission from the copyright owner(s) or creator(s) or infringing their interest.
Fair use law is not only applicable to text-based works; it applies to musical, dramatic, artistic, literary and typographical works too. However, it does not cover the copyright of printed music.
As an exception to British copyright law, fair dealing is governed by Sections 29 and 30 of the Copyright, Designs and Patents Act 1988, which outlines three instance where fair dealing is a legitimate defence:
If the use is for the purposes of research or private study;
If it is used for the purposes of criticism, review or quotation;
Where it is utilised for the purposes of reporting current events (this does not apply to photographs)
A statutory definition for fair dealing does not exist; it will always be a matter of fact, degree and interpretation in every fair use case. Nor is there a percentage or quantitative measure to determine fair dealing. The Intellectual Property Office lists the key factors used to determine the validity of whether a particular dealing with a work is fair as follows:
Has the use of the work impacted negatively on the market for the original work? If the creator or owner has lost potential revenue through the re-use of their work, it is not likely to be fair.
Was it reasonable and necessary to use the amount of work that was taken?
The Copyright, Designs and Patents Act 1988 also outlines the potential fair dealing defences that permit the use of copyright works without permission from the author(s) or creator(s) under UK copyright law:
Fair use for private study and exploration
Generally speaking, anyone wishing to copy an owner’s artistic works for research or private study must do so themselves. However, other people can make a single copy on their behalf.
In 1965, the Society of Authors issued fair use copyright guidance stating the acceptable boundaries for study and exploration:
One article from an individual issue of a journal (even if the article is the entire journal issue)
Up to 10% of a short book (up to 200 pages long)
One chapter or up to 5% - whichever is greater – of a book or similar publication
One poem or short story of up to 10 pages
A report of one case in law reports
Fair use for the purpose of an examination or instruction
Copying the works of a literary, musical, dramatic or artistic work – and even a broadcast, film or sound recording – is allowed for the purpose of a school or industry examination or instruction providing it meets the guidelines set within the Intellectual Property Offices’ Exceptions to Copyright for Education and Teaching:
The work is copied by the student or individual providing the instruction
The work is not copied using reprographics
The source of the examination or instruction material is acknowledged
The examination or instruction is solely non-commercial
Fair use for quotation, critique or review
The Society of Authors advises that limited citations of a work are allowed if used solely for the purpose of critique or review under the following conditions:
Providing the work is publicly available
The source of the work is acknowledged
The quoted material is supplemented by topical discussion or assessment
The extent of material quoted is considered an acceptable amount for the purpose of review
Fair use for the reporting of current news events
Section 30(2), (3) of the Copyright, Designs and Patents Act 1988 lists the permitted conditions of using copyright material for the purposes of reporting current events:
The material is not a photograph
The source of the material is “sufficiently acknowledged”
The extent of material included in the report is considered an acceptable amount for the purpose of the news story
Fair use for parody, caricature or pastiche
The UK copyright law on fair use of works for the purposes of creating a parody or pastiche is also listed in Section 30A, Schedule 2 (2A) of the Copyright, Designs and Patents Act 1988.
Guidance from the Intellectual Property Office (IPO) states that fair use needs to be “fair and proportionate” and does not protect an individual from any other rights an author may have.
Fair use for text and data mining
The Intellectual Property Office states an exception to copyright exists to enable researchers to make copies of any copyright material for the purpose of “computational analysis” if they already have lawful access to read the work.
The IPO also confirms that fair use for text and data mining should meet the following guidelines:
Whole copies can be made
The material source must be attributed
The exception cannot be overridden by any contracts
The information above relates solely to fair use copyright policy in the UK.
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This article first appeared on the British Library’s Business and IP Centre website. Click here to view.