What is fair dealing?
This week is the UK Fair Dealing Week. This blog will help you understand what fair dealing means and why it’s important for you to know about it.
Copyright is an intellectual property right that automatically gives exclusive rights to the creator of the work as long as the work is original and fixed or recorded. This includes rights such as the right to copy, adapt or share the work online. Copyright protection is automatic and typically lasts for 70 years after the death of an author. The protection and use of others’ work are therefore covered by UK copyright law and typically you would get permission (or a licence) to use the work of another.
However, licences are not the only way you can legally use others’ content. There are a number of exceptions to UK copyright law that mean in certain circumstances you do not always need permission from the rights-holder to use their content. These are set out in the Copyright, Designs and Patents Act 1988, which was updated in 2014 to make it ‘fit for the digital age.’ The important exception for educators was updated in 2014 – ‘Section 32: Illustration for instruction.’ Here is an example from the UK Governments copyright guidance site.
“the copying of works in any medium as long as the use is solely to illustrate a point, it is not done for commercial purposes, it is accompanied by a sufficient acknowledgement, and the use is fair dealing.”
Fair dealing is an important concept that needs to be considered if you wish to make use of many UK copyright exceptions. It acts as a type of ‘test’ to ensure that when you are using one of these exceptions you are still doing so fairly. The concept of fair dealing aims to allow the use or reproduction of work without having to seek permission from the copyright owner(s) or creator(s) or infringing their interest. Going back to the example above.
“This means minor uses, such as displaying a few lines of poetry on an interactive whiteboard, are permitted, but uses which would undermine sales of teaching materials are not”
This exception applies to all types of copyright works including text-based content, musical, dramatic, artistic, literary and typographical works too.
The UK government guidance also states that
“There is no statutory definition of fair dealing – it will always be a matter of fact, degree and impression in each case. The question to be asked is: how would a fair-minded and honest person have dealt with the work?”
Please note, Fair Dealing is not the same as Fair Use, which is a doctrine of US Copyright Law, but is often mentioned in relation to copyright. The concept of ‘Fair Use’ is in some ways broader than Fair Dealing, as it permits copying provided one of four factors are met. You can find out more about Fair Use from Stanford University library, but note Fair Use does not apply in the UK.
How much can I copy?
Fair Dealing requires that you only copy ‘as much of a work as is necessary for the purpose’ and the copying ‘must not impact on rights holders’ legitimate exploitation of their work’.
The UK Government guidance states whether deciding a particular dealing with a work is fair would include:
“does using the work affect the market for the original work? If a use of a work acts as a substitute for it, causing the owner to lose revenue, then it is not likely to be fair.
is the amount of the work taken reasonable and appropriate? Was it necessary to use the amount that was taken? Usually only part of a work may be used.”
To answer the question of how much can be copied ask yourself
- 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?
How does fair dealing apply to teaching and learning?
The most relevant exceptions that might apply in an educational context include:
- research and private study
- criticism, review, quotation and news reporting
- caricature, parody or pastiche
- accessibility (disabled users)
- illustration for instruction
- recording of broadcasts
- text and data analysis
- library and archives
For a comprehensive overview of copyright exceptions in the UK the website Copyrightuser.org provides extensive guidance. These exceptions allow educational establishments more flexible use of materials and permit minor acts of copying for teaching purposes – as long as the use is considered fair and reasonable. Copying of works for the purposes of Illustration of Instruction in any medium is allowed as long as the following conditions apply:
- the work must be used solely to illustrate a point
- the use of the work must not be for commercial purposes
- the use must be fair dealing; and
- it must be accompanied by a sufficient acknowledgement
However, most importantly the use of exceptions needs to be weighed up in reference to several important educational licensing schemes such as the Copyright Licensing Agency Higher Education Licence (covering extracts of printed books and journals) and the Educational Recording Agency Licence (covering broadcast content from TV and radio). These blanket licences have specific terms and conditions regulating the use of their content and the amount that can be copied. Most importantly copying under these licences carries almost no risk, providing the terms and conditions are followed.
Top tip
Always link to the original source of a PDF, or online document rather than downloading that and uploading it to the VLE (Canvas) or emailing it to students. Downloading and distributing would be considered as making a copy and may result in loss of revenue. However, the distribution of the link to the source and/or a relevant quotation from the source, could increase student engagement and increase potential revenue for the authors.
General Principle
Treat others’ work with the same respect as you would want your work treated and don’t damage their ability to profit from their hard work.
Need more help
Contact the LJMU Library
Key resources
UK Government Guidance: Exceptions to Copyright
This blog was written with support from ALT Copyright and Online Learning SIG (CoOLSIG)
Disclaimer: This information should not be considered as legal advice