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

Copyright 2014 The Awkward Yeti, theawkwardyeti.com. Reproduced based on blanket permission, which can be found on https://theawkwardyeti.com/2020-about/.

In this blog we often highlight the importance of respecting others’ legal and moral rights when using copyrighted materials.

We tend to speak less often about copyright infringement affecting you as an author. Yet this is clearly as important.  It is increasingly the case, for example, that students make teaching resources  – including lecture slides, handouts and test questions but also, in some cases, unpublished articles, research data and code – publicly available online. This is done without the lecturer’s permission.

In an online environment, students may have a genuine desire to share resources with others. Many are also encouraged to be upload their lecture notes (although they also include their lecturers’ materials) on online platforms, in exchange for access to other resources or even for payment. As a result, materials meant to support students on a specific course but not to be shared without further quality control are made available, risking the lecturer’s or University’s reputation and even compromising publication and commercialisation opportunities.

If you find your teaching materials have already been shared, or if you are concerned that they might appear online without your consent, here are some things you can do:

1. Know your rights. The default position at UCL is that copyright to your teaching materials belongs to you. Be aware of this fact and if necessary assert your rights, letting others know that sharing is not allowed without your permission.
2. Mark your work as copyright. Although this is not necessary for copyright to be protected, it is helpful for you and for others to know who the copyright owner is and that the work should not be copied or shared unless explicitly permitted (i.e. for the purposes of the course).
3. Take down materials. The first point of call should be the student; explain to them that the material was unlawfully uploaded and kindly ask them to have it removed. If this is not possible, most platforms have take down request forms they require you to use. The UCL copyright team can also provide wording if necessary.
4. Educate your students. It is most likely lack of awareness that makes others infringe copyright. The copyright team is preparing communications to increase the understanding of copyright issues. You can contribute to this effort: you may want to explain to them the consequences of sharing materials unlawfully and where possible, make this awareness part of your teaching. You can also encourage them to complete the online Copyright Essentials module, a short introductory resource.

Image from the Creative Commons wiki. Available under a Creative Commons Attribution licence.

5. Make your materials open – in your own terms. In some cases where you feel your materials can be shared more widely, you may find it appropriate to license them so that others can reuse them, while you retain copyright, get attributed, and specify the terms of reuse. Creative Commons Licences are the best way to do this. You can specify, for example, whether others can adapt the materials – a great benefit of open educational resources – and whether or not they can be reused commercially.

For more information and support on copyright, we run sessions on copyright for research, teaching, publishing contracts and Creative Commons licences. See  our current programme or contact us to arrange a bespoke session.

• The UCL Library Services Copyright team  is currently working remotely. We are still available to assist with copyright enquiries from UCL students and staff specifically, so please do feel to contact us by emailing:  Copyright@ucl.ac.uk We will be checking those emails regularly, but we will also be working non-standard hours for the time being so please bear with us if it takes a while to reply to your questions.
• We regret that you are not able to contact us by phone or to arrange face-to-face meetings, both of which would be possible for UCL students and staff under normal circumstances.
• There is also some copyright information available on the UCL website which we may find useful.
• Given the current difficulties you may be experiencing accessing academic materials we will add further posts with information about online sources which may be helpful.

A recent enquirer asked about producing a digital version of a book which included two contributions in English by well know Czech political figures. Both the authors had died before 1949. Given that the usual copyright term of the author’s lifetime plus 70 years would apply, it follows that the published works of both authors  are out of copyright in the UK (and the EU generally), so both contributions may be digitised and made available without permission.

However, one needs to bear in mind that translations are also protected by copyright and for the same term. So that if the works had been translated into English by someone other than the author in each case, one would also need to investigate the identity and dates of the translator, in order to be certain that no additional permissions were required.

A recent enquiry concerned the use of a past thesis in a writing workshop where students of a specific course would have the opportunity to examine and also to critique the writing style of that thesis, which would be studied as a relevant example. The question was whether it would be acceptable to copy the thesis in its entirety for the purpose of the workshop.

It seems very likely that this re-use of a thesis would be “fair dealing” in terms of the education (or “illustration for instruction”) exception which can be found in Section 32 of the Copyright, Designs and Patents Act 1988 (CDPA). Naturally this would only be “fair dealing” to the extent that the copies were used strictly for the task in hand and not for any additional purpose beyond the scope of Section 32. The context also needs to be “non-commercial” so something like  a fee-charging CPD course would probably not be covered.

In addition Section 32 does not specify that the work must have been  “…made available to the public” as does the exception for criticism, review, quotation and news reporting (Section 30, CDPA) for example. So that question does not arise in relation to the thesis.

Copyright infringement arises from re-using someone’s work without the permission of the copyright owner (or the benefit of a licence or suitable copyright exception) and is a legal issue. On the other hand, plagiarism arises from re-using someone else’s work in a way which implies it is your own. It is essentially a matter of ethics and academic discipline rather than a legal issue, although the consequences can be very serious.

Naturally the two problems can often overlap (re-using work without a legal basis and without acknowledgement). The key to avoiding plagiarism is always to acknowledge other people’s work when you are quoting form it or when relying upon ideas developed by someone else. That way you can’t be suspected of passing it off as your own work.

The UCL Copyright team are often asked about the dangers of self-plagiarism:

“Will  I be in danger of self-plagiarism if I re-use material from my thesis in a published article?” or conversely perhaps: “Can I use material from my previously journal articles in my thesis?”

Self-plagiarism is a real issue, in the sense of recycling you previous work as though it were wholly original, in a context where a certain level of originality is essential. The key to avoiding this danger is very similar to avoiding any kind of plagiarism: You need to be scrupulous about citing your own previous work where you are quoting from it or relying upon it.

In the context of your  thesis there may be separate academic issues about relying too heavily on your previously published work even though you are crediting it scrupulously, so in those circumstances  it would be good to discuss that with your PhD supervisor at an early stage.

Recently we were asked about quotations in a PhD thesis which was about to be submitted for posting in Discovery, UCL’s open access repository. The student had included a small number of images from published papers by other authors (third party material).

Very sensibly the student had made an initial attempt to seek permission by contacting the publisher in each case but had received no response and was concerned about what to do next. Was permission essential to include these particular images? Again, a sensible question.

Further investigation showed that one of the source articles had in fact been published under a Creative Commons licence (as it happened, the most generous “CC BY” licence). In that particular case it would be fine to reproduce the image without seeking permission but only if one fulfilled the terms of the CC licence in some reasonable manner.

In our example the student had not realised the significance of the licence so had not initially taken steps to fulfill all its terms, such as identifying the licence and linking back to the Creative Commons website. So, ironically, even though the student was licensed to reuse the image, if they had proceeded without fulfilling the terms, there was the potential for copyright infringement.

Post graduate students will typically have an impressive grasp of detail in their chosen field but not necessarily when it comes to copyright and licensing issues. This example illustrates the importance of having at least a broad awareness of copyright when you are making your work available online and including quotations from third party material. Fortunately in this case the student was wise enough to seek advice on the potential issues.

People sometimes ask about the copyright issues which might arise if one reproduces the cover of a book on social media. For example you might want to use a copy of the front cover to draw the attention of your particular academic community to a useful publication or you might just want to recommend a book to your friends. There is no doubt that the designs of recent book covers are protected by copyright and the usual rules apply.

In principle, unless you believe your usage is covered by a statutory exception,  you do need the permission of the copyright owner, which will usually be the publisher (although perhaps not in every case). The book cover is arguably a complete “artistic work” in its own right, so you may be reproducing 100% of a protected work. Both reproducing it and communicating it to the public are activities restricted by copyright.

On the other hand, assuming that you are discussing the book in a positive light in your blog post, what are the chances that the publisher will really object to what you are doing? Is it not a form of free marketing for the publisher’s product?  The process of seeking permission may turn out to be slow and cumbersome and the chances of the copyright owner being concerned are quite small. One could imagine a scenario in which the copyright in the cover design belonged to a free-lance artist. The publisher has paid the artist for a licence to use his work. You, on the other hand, don’t have a licence and have not paid anything to the artist, so in this scenario you could attract the copyright owner’s ire. But then, how likely is that in practice?

In the end it comes down to a decision based on your judgement about the specific book, the context in which you plan to reproduce the front cover and your appetite for risk.

A UCL researcher recently asked a series of questions about obtaining copyright permission to reproduce a published psychometric scale in the researcher’s own paper:

Q. Would the scale itself be protected by copyright?

A. Yes, if it is the original creation of the author(s) it will benefit from copyright protection, in which case permission is required to reuse it lawfully.

Q. What are the copyright implications of translating the scale into another language in order to apply it in a different cultural context?

A. Translation is a type of “adaptation” which is one of the activities restricted by copyright law – Copyright, Designs and Patents Act 1988, Section 16(1)(e)

Therefore you do need permission if you want to publish a translation of someone’s work or make it available to the public etc. Interestingly your translation will also benefit from separate copyright protection as long as it has been made with permisssion from the owner of copyright in the original work.

Q. Can I then publish my paper under a Creative Commons licence (CC licence)?

A. By all means, as long as you are happy for people to reuse  your work freely under the terms of the chosen CC licence. It is impoortant to underline that you cannot licence the reuse of someone else’s work without their permission. Therefore you must include separate copyright information on any quotations of other people’s work, along with the usual acknowledgements of author and source,  to make it clear that it is not covered by the CC licence you are applying to your own work. This would also apply to the psychometric scale. It is important to note that having made your work available under a Creative Commons licence you cannot change your mind and withdraw the licence from people who are already making use of it.

I was reminded recently about an exception tucked away in the Copyright Act 1956 Section 7 which permits the making of a copy of an unpublished literary, dramatic or musical work “…with a view to publication”.You could be forgiven for supposing the 1956 Act entirely redundant but this particular measure is preserved by Schedule 1 paragraph 16 of the current Act (CDPA 1988).

The main conditions are that at the time at least 50 years have elapsed since the end of the year in which the author died and at least 100 years since the work was created.  Also the work must be kept in a “…library, museum or other institution where…it is open to public inspection.”

This could be a way around the 2039 rule, which gives extended copyright protection to unpublished works, by allowing publication in certain specific cases. Section 7(7) of the 1956 Act goes on to confirm that publication of the whole or part of the unpublished work in these circumstances is not infringing.

A significant condition is added at 7(7)b: “Immediately before the new work was published, the identity of the owner of the copyright in the old work was not known to the publisher of the new work…” So in a way the exception only applies to “orphan works” although there is no explict demand for a diligent search (or even a not so diligent search).

My enquiry related to the letters of an artist who died in 1932, satisfying the 50 years test. The letters however were from the 1920s, which is too recent. In order to fulfil the conditions of the exception the unpublished work would need to be created no later than the first half of 1917.

On the other hand there could be many older unpublished literary, dramatic and musical works held by libraries, museums etc. where publication would be covered by the exception.