Exceptions, fair dealing and reuse

Introduction

Copyright law allows certain reuses of copyright materials for specified narrow purposes. These are known as exceptions to copyright, and here we cover some of the ones which can be used in the UK. Exceptions are sometimes referred to as permitted acts, as a balance to the restricted acts controlled by the copyright holder, though strictly speaking they are in fact legal defences against infringement.

Some commonly relied upon exceptions to copyright are subject to the principle of fair dealing. We discuss this important principle, and how you can make a reasoned judgement regarding your own use.

Fair dealing 

Fair dealing is a term used in UK law. It is our equivalent of the American fair use doctrine, and it functions very differently.

Fair dealing is a concept which is used in conjunction with specific exceptions. Our table of exceptions shows which ones are subject to fair dealing limitations.

There is no statutory definition of fair dealing, therefore no set amount of a work that can be used for a specific purpose. Instead, you should consider how a fair and reasonable person would view the use of the work.

Some factors that should be taken into account in deciding if your use of a copyright work is fair dealing:

• Have you acknowledged the author and/or copyright owner, where practicable to do so?
• Could your use act as a substitute for the work?
• Are you using more than is necessary to achieve your intended purpose?
• Can less of the work (or another work entirely) be used to achieve the same purpose?
• Could your copying affect the market for the work i.e. could it cause the copyright holder to lose revenue?

Copyright exceptions

Exceptions are also known as permitted acts. Reusing a copyright work under an exception does not require permission from the copyright owner.

All of the exceptions below come from the current UK copyright legislation: the Copyright, Designs and Patents Act 1988. 'Contractual override allowed' refers to whether the acts covered by the exception can be prevented by a contract term, for example a subscription through which a user gains lawful access to the work. If this is a negative, then the acts permitted under the exception cannot be prevented by a clause in such an access contract - though note this has no bearing on whether the extent of any given use is fair dealing, which is a matter for case-by-case determination.

Section 29: Research and private study

Category	Summary	Commercial use allowed?	Contractual override allowed?	Fair dealing?	Potential application
Research/Education	You can make a single copy of a fair dealing amount for non-commercial research or private study.	No	No	Yes	Photocopying a chapter of a book in order to research a topic for an essay.

Section 29A: Copies for text and data analysis for non-commercial research

Category	Summary	Commercial use allowed?	Contractual override allowed?	Fair dealing?	Potential application
Research/Education	You can copy works for the purposes of text and data mining providing you have lawful access.	No	No	No	Extracting articles from a database in order to carry out a linguistic frequency analysis.

Section 30: Criticism and review, quotation, news reporting

Category	Summary	Commercial use allowed?	Contractual override allowed	Fair dealing?	Potential application
Research/Education	You can copy part of a work for these purposes. The quotation element was introduced in 2014, and covers quoting for any purpose. This does not cover unpublished works.	Yes	Varies - for quotation no, for the other uses yes	Yes	Criticism: using low resolution versions of artworks in a thesis in order to discuss an academic theme. Review: using sentences from a newly published book in order to review it. Quotation: using a line of poetry as a decorative backdrop for a poetry event.

Section 30A: Caricature, parody or pastiche

Category	Summary	Commercial use allowed?	Contractual override allowed?	Fair dealing?	Potential application
Research/Education	This exception was introduced in 2014. You can copy part of a work for this purpose. This does not cover unpublished works.	Yes	No	Yes	Using a few lines from a song to create a parody sketch, or using small amounts of a film to create a larger pastiche work.

Section 31A and 31B: Accessible copies for disabled users

Category	Summary	Commercial use allowed?	Contractual override allowed?	Fair dealing?	Potential application
Disability	Individuals and institutions can make an accessible copy of the whole or part of a work for the users with any type of disability.	No	No	No	Making a large print copy of a book for a visually impaired person, so long as the person has lawful access to the original work.

Section 32: Illustration for instruction

Category	Summary	Commercial use allowed?	Contractual override allowed?	Fair dealing?	Potential application
Teaching	You can copy part of a work for the purpose of illustrating a teaching point. This is not limited to teaching within an educational establishment.	No	No	Yes	Including a short snippet of a video in a presentation, if the snippet is integral to the teaching point that you’re making.

Section 34: Performing, playing or showing work in course of activities of educational establishment

Category	Summary	Commercial use allowed?	Contractual override allowed?	Fair dealing?	Potential application
Teaching	You can perform, play or show a work for purposes of instruction in an educational establishment. Members of the public cannot be admitted.	No	Unclear	No	Playing a DVD of an entire film in a class where the film is related to the teaching.

Section 35: Recording of broadcasts

Category	Summary	Commercial use allowed?	Contractual override allowed?	Fair dealing?	Potential application
Teaching	You can record free-to-air broadcasts on behalf of educational establishments for non-commercial purposes. However, the ERA Licence takes precedence over this exception.	No	Yes	No	Making a recording of a television show and playing that recording in class or making it available on a secure VLE.