Square puzzle: Open Clipart, public domain. Text added by C. Daoutis.

Fair Dealing Week (26 February to 1 March 2024) is an annual opportunity to highlight copyright exceptions and how you may rely on them when using copyright materials in your studies, research and teaching. Although the main focus of the week is on ‘fair use’ in the US – quite different from ‘fair dealing’ – in previous years events were organised across countries with similar provisions, including the UK.

This year we will be marking fair dealing with a series of blog posts that discuss three copyright exceptions in UK copyright law that are subject to what we call ‘fair dealing’. We are also running a Q and A session on Monday the 26th of February at 2 pm at the UCL Institute of Education. 

Register for the copyright exceptions Q and A

When using materials created by others (text, images, video etc) you normally need permission or a licence from the copyright owner. There are, however, other options to consider. In some cases, materials are in the public domain, either because copyright has expired or because the copyright owner has waived the copyright – as is the case in the square puzzle image used here. In other cases, materials are in copyright but are available under an open licence, allowing reuse under certain terms. Examples include open access articles, images available under a Creative Commons licence, and open source software.

In specific cases, you may also be able to use materials without permission by relying on ‘permitted acts’ (also known as copyright exceptions) which are defined in UK copyright law. Some of these exceptions are subject to ‘fair dealing’, which essentially means treating the materials in a ‘fair-minded and honest’ way.  It is essential to understand how you can rely on copyright exceptions as this will help you use materials in a more flexible way. To help you test your knowledge, we have put together a 7-question quiz on copyright exceptions.

Take our new copyright exceptions quiz

Whether you are already a pro at fair dealing exceptions or would like to know more, look out for more copyright posts next week. We also hope you can join the Q and A on Monday!

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recently about an exception tucked away in the Copyright Act 1956 Section 7 which permits the making of a copy of an unpublished literary, dramatic or musical work “…with a view to publication”.You could be forgiven for supposing the 1956 Act entirely redundant but this particular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.

One of the significant new exceptions introduced this year enables Text and Data Mining (TDM) to be carried out on bodies of copyright material as long as it is for a “non commercial purpose” (and the sources should be acknowledged where possible.)

TDM includes a range of advanced techniques for analysing vast quantities of data in order to draw out new facts or statistical trends, or gather evidence of previously unexplored relationships (for example between chemical substances and medical conditions). The potential uses of TDM are very wide ranging and may occur in all disciplines.

The new exception makes the application of TDM to copyright works possible by removing the copying of material (which is an essential part of the TDM process) from the realms of infringing activity.

A Jisc report on the value and benefits of text mining from 2012 mentions that at that time TDM activities in higher education were mainly focussed on Open Access materials because the latter were more readily available. Since the new TDM exception was introduced in June 2014, the content of a vast number of e-journals to which universities such as UCL subscribe should also be available for TDM. This results from the fact that under the legislation, the terms of our contracts with the publishers of those journals cannot over-ride the TDM Exception:

“To the extent that a term of a contract purports to prevent or restrict the making of a copy which, by virtue of this section, would not infringe copyright, that term is unenforceable”, Copyright, Designs and Patents Act 1988, Section 29A(5).

This means that any terms in suppliers’ contracts which sought to restrict advanced computer analysis of their repertoire will no longer have any weight, at least where non commercial research is concerned.

The Court of Justice of the European Union gave its judgment in the case of the Technical University of Darmstadt and Eugen Ulmer on 11^th September 2014. The case concerns the exception in the EU Copyright Directive which allows copyright works to be made available on “dedicated terminals” by libraries. This is topical in the UK because the dedicated terminals exception (DTE) was introduced as Section 40B of the Copyright, Patents and Designs Act 1988 in June.

The publisher Eugen Ulmer KG is taking legal action against the University, which has chosen to make use of the DTE in order to digitise and make available a recent history textbook published by Ulmer. In various respects this is a test case. The Court has answered the questions raised by the German court in a way which is similar to the view of the Advocate General’s Opinion (Blog post 2^nd September 2014):

• The fact that the publisher has offered a licence for the e-book version of the work does not mean that the University is subject to purchase or licensing terms, which would prevent it making the book available.
• Member states may allow libraries to digitise works in order to make them available via dedicated terminals.
• The DTE does not permit copying of the work by library users either in terms of printing or digital copies. It is simply an exception to the restriction on Communicating to the Public. However other exceptions may allow copying as long as the relevant conditions are met.

The case brings out interesting differences between UK and German copyright legislation, such as the condition under the German version of the DTE that the number of digital “copies” made available cannot exceed the number of paper copies purchased. There is also an emphasis of the concept of “adequate remuneration” for rights owners in the judgment – presumably provided via the German system of levies on copying equipment, which has no equivalent in the UK. At the moment we cannot be sure of the relevance the CJEU judgment has for UK libraries.

Among the updated exceptions to copyright introduced this month there are two which are specific to education and which I will cover in separate blog posts. Firstly there is the exception “…for the sole purpose of illustration for instruction”. This is in the amended Section 32 of the Copyright, Designs and Patents Act 1988. It is a “fair dealing” exception and is available to those receiving and giving instruction.

Now expanded to cover any method of copying and copyright works in any medium, this exception has been transformed into something useful, but care is required about what is and is not covered.  Examples that would be covered:

• A modest extract from a film in a presentation to students, as long as the extract is copied from a legal source and the other criteria are fulfilled.
• Distributing copies of an extract from a book to students for use in a seminar.

What would not be covered:

• Anything which is not “fair dealing” such as an unreasonably long extract or a replacement for purchasing copies of a text book.
• Anything done for a commercial purpose, such as a charged CPD course.
• Long-term storage of the extracts, beyond the immediate teaching context.  

The exception will permit usage of material not already covered by a licence. In some cases there may be a choice between the exception and copying under a licence.  There is a good case for preferring the licensed route to minimise risk.

A post on copying for examinations will follow.

The updated Disabilities Exception to copyright (first mentioned here on 10^th April) came into force on 1^st June, which is great news. It represents a significant expansion of the permission given to “authorised bodies” to improve the accessibility of copyright works for persons with disabilities. It enables any educational or not for profit organisation to:

• Produce an accessible copy for a person with any type of disability which causes difficulty in accessing a copyright work.
• Copy any type of copyright work into an accessible format.

Previously the exception was limited to people with visual impairments and to text based copyright works. By way of example, the updated version enables an educational body to produce a subtitled version of a film or TV broadcast for students with hearing issues, to produce an alternative print format to assist a student with dyslexia or to provide a copy which would be more accessible to a person with mobility issues.

The requirement to check whether there is a licence which would permit the making of the relevant copy has been removed, but the exception only applies to the extent that there is not a copy in the required format available commercially on reasonable terms. There are reporting and record keeping requirements which need to be observed.

Copyright, Designs and Patents Act 1988, New Sections 31A to 31F

Link to JISC piece on the New Exception

It is interesting that some of the new copyright exceptions have been extended to benefit Museums specifically:

Preservation Copies
A good example is the updated Section 42 of the Copyright Designs and Patents Act 1988 (CDPA) which permits libraries, archives and museums to reproduce copyright works for purposes of replacement and preservation. Not only does this exception now cover museums, it has also has also been widened to encompass copying of works in any format. This means for example that deteriorating film stock and fading photographs can now be reproduced (digitised) for preservation.
Dedicated Terminals
The other prominent example of the inclusion of museums is an entirely new exception in Section 40B of CDPA (new to UK  legislation that is – it is drawn from the EU Copyright Directive 2001/29/EC). This permits libraries, archives, museums and educational establishments to make a copyright work available on a dedicated terminal to members of the public for purposes of research and private study. Interesting that this is not limited to “non commercial” research, but then it does not permit copying.
Although not explicit in the wording of the new exception, the IP Minister, Lord Younger has made it clear that the primary purpose is to improve the availability of digitised copies of older copyright material which may be fragile and otherwise inaccessible to the public.
There is ongoing litigation in Germany involving a University which sought to rely on the underlying exception in EU legislation to justify making a recently published book available via “dedicated terminals” (Schulze v. Darmstadt). Various issues have been referred to the European Court of Justice (reference C-117/13). The outcome will be interesting.

The latest on the copyright exceptions is that the updated exceptions for Disability; Research, Education, Libraries & Archives; and Public Administration have all completed the Parliamentary process this week and will become law on 1st June. This is thanks in part to energetic lobbying by the library and archives community. The commitment of the IP Minister (Lord Younger) to updating the legislation and the hard work of the IPO should also be acknowledged. A few other changes (contained in 2 statutory instruments) have been held back for closer scrutiny, but there is still hope that this is just a temporary delay. The exceptions which have been delayed are the Private copying exception, covering format changing by private individuals and the new Quotation and Parody exceptions. The Quotation and Parody exceptions are very significant for us and we must hope that it is just a matter of time, but most of the changes of obvious relevance to UCL have passed.

Follow this link to see Lord Younger’s latest statement.

The proposed exception for quotation (New CDPA Section 30) will replace the existing “criticism and review” exception and is much broader. It covers quotation for any purpose, subject to the fair dealing test. The existing exception can only be relied upon when quoting for the purpose of criticism or review of either the work quoted or another work. The replacement is also broader in the sense that it covers unpublished works as long as they have been “made available to the public” (in an archive for example). This will be a positive change in area of historical research.

The exception covers all copyright works, including film and sound recordings, so it will widen the scope for including extracts from those media. It should be easier to include brief extracts in academic works, reducing the occasions where permission is required. Can one ever rely upon the exception to reproduce the whole of a work, for example a photograph, where merely reproducing a proportion makes little sense? This remains doubtful and would be a matter of applying the fair dealing test. Are we quoting more than is reasonable for our purpose? What is the potential for damaging the interests of the copyright owner?  Caution will still be required. As with some other proposed exceptions, this cannot be over-ridden by contract terms.

Did you know that 26^th April is World Intellectual Property Day ? To be honest neither did I but it is certainly worth celebrating!

This is one of the more exciting changes included in the updating of exceptions to copyright, which have been proposed by the Government. If all goes to plan it should come into force on 1^st June 2014, along with the other changes.  The existing exception (which stands to be replaced) permits the making of accessible copies solely for persons with visual impairments. This allows for example large print copies, conversion into braille and audio versions. Currently there is nothing to  permit copying into a format to assist people with any issues other than visual impairment, such as dyslexia.

The updated version, as published by the IPO, will allow us to make an accessible copy to give a person with any type of disability better access to copyright material. So that if a person with mobility issues would benefit from an accessible copy, we would be allowed to produce that copy for them.

The other major advantage of the new exception is that it now  covers all published copyright works, regardless of the format of the original work. If an accessible version of a film or a sound recording were required then we can now make it.  There are still some checks and record keeping which must be maintained when using the exception but there is little doubt it will be a big improvement. For further information email:  copyright@ucl.ac.uk

Chris Holland, Copyright Support Officer

Link to IPO site