Our previous post opened Fair Dealing Week (20-24 February 2023) with a general overview of what ‘fair’ means in the context of ‘fair dealing’. We close the week with a post on three copyright exceptions in the Copyright, Designs and Patents Act 1988 (CDPA) that are most relevant to studying, teaching and research. You can rely on these exceptions to copy and use materials without permission, as long as your use is ‘fair’.

Three key copyright exceptions

Image credits: 1. Image by tulyawat01 on Freepik 2. Image by rawpixel.com on Freepik; 3. Copyright UCL Creative Media Services

Research and private study. You may be able to copy (e.g. photocopy, download, scan) limited extracts from books, journal issues and other documents; or images related to your study; for non-commercial purposes (section 29, CDPA).

Quotation. You may include in your work extracts from books, journal articles and other works already made available to the public, if the purpose and the context justify it. You should only use as much as you need for your purpose (section 30, CDPA). Including whole works may be justified, but some caution is advised when including images.

Illustration for instruction. You may rely on this exception to include text, images, film and music in your lectures (e.g. slides, recordings), in exam papers and, if you are a student, in coursework, theses submitted for examination and class presentations. The use must be non-commercial (section 32, CDPA).

How do you apply ‘fair dealing’ to these exceptions?

Image by Freepik

We discussed ‘fair dealing’ in our previous post. If you decide to on an exception, the following acronym may help you remember what to consider:

Credit where credit is due

Damaging the (commercial and other) interests of copyright holder? Don’t use!

Purpose

Amount used

As ‘fair dealing’ is a matter of intepretation and risk assessment, you may also want to contact the UCL copyright team for advice, or refer to our resources.

UCL copyright resources

• Copyright online module
• Copyright website
• Copyright training sessions

Fair Dealing Week (20-24 February 2023) is an annual opportunity to discuss and promote how copyright exceptions can be applied, in a thoughtful and fair-minded way, to use materials without permission from the copyright holder. This is the second Fair Dealing Week marked in the UK, having originated as ‘Fair Use’ week in the US and expanded to countries with similar doctrines last year. You may be interested in some events happening this week.

But what are these copyright exceptions, and what is ‘fair dealing’?

In the UK, you may be able to use materials without permission, for specific purposes. These ‘permitted uses’ are defined in UK copyright law and include research, private study and education.  We will be discussing these in more detail in part 2.

The general principle is that you may be able to use others’ materials in an academic or research context; for example, in an essay, dissertation, lecture, or examination, without permission, as long as the use is ‘fair dealing’. Importantly,  ‘fair dealing ‘ itself  does not have a statutory definition, and this is where you would need to apply your own judgement. As stated in the UK government’s guidance:

“The question to ask is:

how would a fair-minded and honest person deal with the work?”

If this sounds too vague, there are, in fact, certain criteria that have been identified by the courts. You would need to think, not just about what you think is fair and reasonable, but also what would be likely to be accepted as ‘fair dealing’ in court. In general, there are three important points to think about:

• Use only the amount that is fair and reasonable in the circumstances. One typical example is reproducing too long a quote, when you may need a smaller extract of a work to discuss a point or illustrate an example in class.
• Would your use have an impact on the commercial – and other – interests of the copyright holder? For example, copying and sharing a whole textbook would certainly affect the market.
• Fully acknowledge the source. This is essential but, of course, not adequate on its own to justify copying a work.

In the next post, we will discuss how fair dealing can be applied in specific copyright exceptions. In the meantime, it might also be helpful to think of fair-mindedness and honesty in a broader sense. Start the week by taking our quick poll. This is for fun only; we don’t ask for personal information and we will not be using your responses.

The first UK Fair Dealing week is nearly upon us!  Celebrating the Fair Dealing exceptions in UK copyright law, this week highlights and encourages a better understanding of the topic.  It began as the US ‘Fair Use Week’ which this year has been extended to include countries who use the concept of Fair Dealing in their copyright law.  Though different doctrines they have core similarities.

Chris Holland will write separately about the concept of Fair Dealing and the UK copyright exceptions it works alongside, and the considerations or ‘test’ you might refer to.  For now we wanted to point you to the events happening: the ALT Copyright and Online Learning Special Interest Group have a comprehensive list of events.  I also look forward to Chris reporting back on the Bloomsbury Learning Exchange panel discussion, on 24th February, which he is taking part in.

We would love to hear from anyone who attends the events and wishes to add their thoughts here. And as always, if this raises any questions then do request a staff briefing, or Q&A, or meeting with your students with a focus on Fair Dealing specific to teaching, research or a student project.

The Minister responsible for intellectual Property, Chris Skidmore has stated very clearly that the UK Government has no intention of implementing the EU Copyright in the Digital Single Market Directive. The deadline for member states to transpose the Directive into their own laws is June 2021 by which time the UK will almost certainly have left the EU, so perhaps this should not come as a surprise, given that it may be politically difficult to be seen to be voluntarily implementing an EU measure in the circumstances.

Some of the new exceptions contained within the DSM Directive look very positive for the library and research communities, particularly the measures which provide a practical route for the digitisation and making available of “0ut-of-commerce works” on a large scale,while respecting the copyright in those works. So it is an interesting question whether the favourable measures from the Directive could also be implemented separately in the UK, outside of the framework of the EU Directive. Naturally even if that does prove possible, the UK will still lose out  on the advantages which will spring from the fact that some of the exceptions work across borders between member states.

The Copyright Licensing Agency (CLA) will be conducting a photocopying data collection exercise at UCL in January 2020 for six weeks.

UCL holds a CLA Higher Education licence and it is part of our licence agreement that they occasionally undertake this survey; the last was held at UCL in 2010.  The purpose of the exercise is for the CLA to gather information to inform how they redistribute money to authors and publishers: it is also referred to as a ‘Royalties data’ exercise.

If you are a member of UCL staff who prepares teaching material for students, then this exercise is relevant to you!

The data collection involves a CLA field officer placing a large yellow box next to selected UCL MFDs (multi-functional devices), for teaching staff to drop in a copy of the item they are photocopying.  Near the box will be a notice to explaining the process, plus some sticky data labels.

• If you are photocopying from a UCL MFD (not digitising);
• for teaching purposes (for example making multiple copies to hand to students in class);
• and from a published resource such as a book or journal, then:

Please take a photocopy of the identifying page of the text, e.g. the front page or the reverse side with copyright information on. The information needed is title, author, publisher details, ISSN, etc.  Complete a data label, stick it to the identifying page you have just photocopied;  post this into the yellow box.  Only the identifying page is needed, not the whole extract you are copying.

The collection will take place from 13^th January to the 21^st February 2020: the yellow boxes will start to appear from 6th January and will be removed in the week of 24th February.

There are some FAQs below.  If any questions are not addressed here, please don’t hesitate to contact Hazel Ingrey or UCL Copyright.

FAQs

Why is this exercise necessary?

The CLA use this data to inform their secondary royalty payments to authors and publishers. They collect data from all institutions that hold a CLA licence and use this to pay rights holders.

I don’t see a yellow CLA box next to my copier.

As UCL is so large, with in excess of 800 MFDs, ISD has assisted the CLA in making a representative selection of around 170 copiers.  If there is no CLA box you don’t need to participate in the data collection.

I don’t photocopy for my class, only use digital readings.  Do I need to submit any extra data?

No.  If you are linking to subscribed resources through your online reading list, you are not using any licence (indeed not even copying) and don’t need to report this.

If you are using the CLA licence by digitising through the TLS course readings service, then reporting requirements are already covered for you.

I am photocopying for my research, do I need to add a copy to the box?

No.  The CLA licence only covers copying for teaching purposes.  If you are copying for your own private study or research, and only making one copy for your use, then you don’t need to add anything to the box.  Your copying will likely fall under a CDPA copyright exception (for example s.29) instead.

Can I photocopy anything?

Only published material is relevant for this exercise.  In addition, you should always bear in mind what the CLA licence actually covers when copying readings for your class (in any format).

For reassurance you can use the TLS course readings service to double-check what is covered.  More details are on the library CLA information page; you can use the CLA ‘check permissions’ search (make sure you opt for the HE licence); and the CLA User Guidelines.

Whilst this is not an audit, the CLA will be aware from the collection data if you are breaching their licence.

Does a studypack count?

If you are photocopying a few readings to make up a studypack, then yes!  In fact you can right now submit any study packs online to the CLA Cloud. 

Login Name:    UCL                    Password: (Please email UCL Copyright for the password)

This will remain open until 21^st February 2020.

Is there anything else we can do to prepare?

You could double-check that your local MFD has an up to date CLA notice poster near it, and that your colleagues are aware of the CLA licence.

I’m an author: how do I get paid secondary royalties from the CLA and other collecting societies?!

Salient question.  If you are an author you can join the Authors’ Licensing and Collecting Society (ALCS).  There is a sign-up fee (currently £36) and this fee is deducted from your first royalty cheque.  ALCS also take commission.

How do I learn more about the CLA and other licences that UCL holds?

The library also manages the NLA and ERA licences.  Do get in touch for more information on using these in your teaching.

For an overview to using copyright works in teaching or research, the UCL Copyright Support Officer Chris Holland is very happy to visit your department or student class to deliver a quick session or answer questions!

The Copyright Licensing Agency (CLA) Higher Education licence enables staff at UCL to digitise or photocopy readings for teaching purposes.

It does not cover all published material, so there are some limits to be aware of. Full details of these limits and how the TLS team checks your readings can be found on the Course Readings webpage.

Every three years the licence is re-negotiated with the help of the UUK and Guild HE Copyright Negotiation and Advisory Committee (CNAC).  The new licence period is 2019-22 and in this round there were no major changes.  One new benefit has been that negotiations with RROs in Germany, Belgium and the Netherlands resulted in these country’s materials being brought into the scanning repertoire.  Another new, useful feature is that CLA copies may be made for administrative purposes that are not readings on a named module, for example UCL staff training other UCL staff.  These copies must still adhere to the usual limits but don’t need to be reported.

The licence also allows some photocopying of readings with similar limits to digitising.  Photocopying data is not collected and reported; instead UCL is subject to occasional photocopying data collection surveys.

At UCL the administration of the CLA licence is handled by the library.  The TLS team copyright checks readings to ensure they fall under the CLA licence terms, before processing PDFs or photocopies into a copyright compliant scan, which is recorded and reported to the CLA annually. To take advantage of this service please look at the Course Readings webpage.   If readings aren’t recorded through the library they are not covered by the CLA licence.

In the year 2018-19 UCL reported in excess of 6,500 digitised readings, which were delivered to students through the relevant module’s online reading list.

There is already a great deal of high quality digitised material available, from e-books and e-journals to Open Access articles in UCL’s institutional respository and UCL Press, which mean that you can sidestep copying issues altogether. Linking to a resource in an online reading list using ReadingLists@UCL will give easy access for your students, whilst avoiding headaches about licensing for you.  You don’t need a licence or permission to link to legitimate or subscribed resources.

For more information please don’t hesitate to get in touch with the TLS team!

SCONUL have published a new briefing paper on the library exceptions to copyright with a very clear explanation of the exceptions which permit libraries to supply copies upon request to members of the public and to other not-for-profit libraries (broadly Sections 41 to 43 of the Copyright, Designs and Patents Act 1988). The authors of the briefing are well known copyright experts, Jane Secker and Chris Morrison and the title is Copyright briefing paper on the Hargreaves exceptions

This serves as a useful reminder of the changes to the relevant exceptions which give more flexibility to library staff. Just to mention a few examples: we can now supply extracts from e-journals as well as print, while adhering to the terms of the exceptions, the article can also be delivered electronically (as Pdfs for example). Although declarations are still required when providing copies to individuals, they no longer need to be print nor do they need to be signed. The current legislation is also less prescriptive about the wording of the declaration (the briefing includes some useful sample wording for the latter).

The 3 concise case studies included in the briefing present useful examples of ways in which the new flexibility can be used by libraries to improve services to their academic communities. The SCONUL briefing gives us a clear explanation and a useful reminder about the updated library exceptions.

A recent case heard by the Court of Appeal,  Kogan v. Martin sheds light on the test which the court needs to apply to decide whether someone is in fact a “joint author” of a work. Joint authors share ownership of the copyright in a work, so the decision whether someone’s contribution is sufficient to make them a joint author can have important consequences, especially if the work has a  significant commercial value. Kogan v. Martin concerns the authorship of the film script for Florence Foster Jenkins a feature film released in  2016. The test for someone to qualify as a joint author is examined in great detail in the Court of Appeal judgment and summarised very well in a post about the case on the IPKat blog

Interesting points which one can take away from this case:

• It can be misleading to place too much importance on “who pushed the pen” when a collaborator contributing ideas for plot, scenes and characters to a dramatic or literary work can be equally entitled to be recognised as a joint author.
• The test for authorship, influenced by important case law from the Court of Justice of the European Union (CJEU) is whether the work is the expression of the person’s own intellectual creation.
• One can make a smaller contribution but still be a “joint author” if one satisfies the test.

This is interesting in the academic context, where research papers are often published under the names of multiple authors.

One of the issues faced regularly by archives which hold the correspondence of a prominent person is that the letters will have multiple copyright owners. Copyright in a letter belongs to the author and typically there will be many authors. This becomes an issue when you need permission to digitise or publish letters from the archive.

The ownership of copyright in letters has been thrown into the spotlight by the legal action brought by Her Royal Highness the Duchess of Sussex against Associated Newspapers with regard to the alleged publication of private correspondence in the Sunday Mail. Infringement of copyright is one of the claims, perhaps the main claim.

The underlying copyright issues are discussed in depth here on the IPKat blog including the difficulty the newspaper might have if they try to claim their use of the letters was covered by one of the exceptions to copyright contained within Section 30 of the Copyright, Designs and Patents Act 1988 (CDPA), which deals with “fair dealing” for the purpose of criticism, review and quotation more generally. The difficulty for the publisher is that the letters in question must have been previously “made available to the public” with permission of the copyright owner (the Duchess in this case), otherwise the exception does not apply (by virtue of CDPA Sub Section 30,1ZA,a). It seems unlikely they could claim that this condition has been fulfilled.

Although copyright is often in the headlines with respect to the music business it is less common to find copyright in unpublished literary works featuring so prominently.