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Hypatia Project: Copyright Guidance: Fair Dealing

An introductory guide about copyright issues relating to the digitisation of print materials

The Fair Dealing Concept

In order to balance the rights of copyright owners and users, a number of 'permitted acts' are specified in the CDPA which means that third parties can make use of copyright materials within certain limited exceptions.

The exceptions of most relevance to researchers are those that are commonly referred to as fair dealing exceptions. You may also see references to fair use.

There is no legal definition or set criteria for determining what constitutes fair dealing. It will need to be assessed and determined on a case by case basis. Factors that have been used by the courts in the past when judging on fair dealing include:

  • Commercial Exploitation
  • Amount Taken
  • Due Acknowledgement

These and other factors will be weighed when assessing a determination of fair dealing/use and the relative importance of the factors will vary according to the particular case in hand.  

For example, in the case of images, factors such as the use of high resolution versions or low resolution versions can have an impact on the determination of fair dealing. The use of a low image resolution image in a research paper, with due acknowledgement to the original image, may have minimal impact on the commercial market for the original.

Take a look at the Display At Your Own Risk: An experimental exhibition of digital cultural heritage publication for an understanding of how the size and quality of images has been analysed and used as part of a virtual exhibition project.

Does your use affect the market for the original work?  

  • If your use substitutes for the original and causes the owner to lose revenue that it is not likely to be judged fair use

Is the amount of the work you use reasonable and appropriate?

  • Was it necessary to use the amount that was taken or was it excessive? 
  • Usually only a part of a work may be used.

Have you acknowledged the original?

  • If you use copyrighted material you should acknowledge the original material in order to be fair to the original creator.

Fair Dealing Exceptions

This section highlights the key fair dealing exceptions that can be used in order to make substantial use of copyright works.

You should refer to chapter III of the CDPA for the exact detail of each exception.

The IPO Exceptions to Copyright: Research guide is also a useful resource.

And always remember that your use must be fair to the original creator, as well as falling within one of these exception categories.

This exception allows you to copy limited extracts of material for your private use during your studies or research (provided your research is not for commercial exploitation).  This does not apply when you want to use materials for non private use, such as making them openly accessible for all as part of a project or sharing them with a group of people.

Academic research is typically considered non commercial, but if your research will generate a financial return for you or an organisation you are working with it would not be considered non commercial.  

The use must be fair, so the usual fair dealing concepts of the amount used and the commercial impact on the copyright owner must be taken into account.

This exception allows users to make fair use of third party copyright material in order to comment upon it or related themes and concepts.  

There must be genuine criticism or review of material for this exception to apply. The use of material for simple illustrative purposes does not fall within the exception.  

You should use the fair dealing principles to assist you in interpreting this exception; for example, a short extract or clip and lengthy discussion and review of the extract is likely to be fairer than a lengthy extract with little discussion.  

However, this is not a simple quantitative based exception, and if a long extract or image is integral to your research argument it may still be considered fair use.

The usual fair dealing principles apply to this exception, and it permits the use of 'fair' amounts of copyright materials simply for the purposes of quotation.  

No accompanying criticism or review is required as in the criticism and review exception, so it could be used for illustrative purposes.

This exception relates more directly to educational use than research use as it permits fair dealing with materials for the purposes of instruction or examination, such as using materials within exam papers or within examined theses. 

This means that third party content can be used in this instructional material provided it is fair use under the fair dealing principles. 

However, it does not extend to making the materials more widely available.  For example, third party copyright material may be used within a thesis for the purposes of examination, but cannot be made openly accessible via the University repository after examination, where it would be generally accessible for everyone to use.

This is one of the newer fair dealing exceptions introduced in 2014, so there is little guidance to help understand how it might be applied by the courts.  

The UK Government has indicated in its guidance that under this exception

"a comedian may use a few lines from a film or song for a parody sketch; a cartoonist may reference a well known artwork or illustration for a caricature; an artist may use small fragments from a range of films to compose a larger pastiche artwork" . 

The use would still need to meet the other fair dealing principles such as extent of use and commercial impact on the original creator.

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