Understanding fair dealing and leveraging licensing

In the ever-evolving landscape of digital content and intellectual property, the concept of fair dealing remains a key feature of UK copyright law, designed to balance the interests of creators and users of works protected by copyright.

But what does fair dealing actually mean to businesses and how does it impact UK professionals?

From educators to journalists, artists to office workers, understanding the nuances of how fair dealing applies to copyright exceptions is crucial to anyone who relies on using published content in their day-to-day life. This is particularly important to any commercial organisation, where fair dealing exceptions are not applicable.

What is Fair dealing?

UK copyright legislation contains fair-dealing exceptions in respect of certain specific non-commercial uses. The exception only applies if the use of the work is ‘fair dealing’.

‘Fair dealing’ is a legal term used to establish whether a use of copyright material is lawful or whether it infringes copyright’ (Intellectual Property Office).

It helps to determine the scope of the activities within the exceptions listed below which would permit for example the reproduction of extracts of material protected by copyright without needing to seek permission from the copyright holder.

These include fair dealing for the purposes of:

Research for a non-commercial purpose or private study

Under this exception copies can only be made under very limited circumstances and does not cover any situation where there is intent to publish or distribute the research.

Criticism and review

This only applies if the original work is already available to the public and there is sufficient acknowledgement.

Reporting current events

This primarily applies to journalists and media outlets reporting on current events to provide context to news stories. It is important to note that this excludes the reproduction of photographs. It also does not apply to the reporting of current events for commercial purposes, such as media monitoring services who report on current events for their clients. This kind of activity would require a CLA Media Monitoring Organisation Licence.

Parody, caricature, and pastiche

In this context, the new work must transform the original material in a significant way that result in a new and distinct expression. It should not create confusion about the source of the original work.

Educational uses of illustration for instruction

Copying here is limited to only what is required to illustrate a teaching point and has not been done via a reprographic process e.g. photocopying or scanning. It does not cover making multiple copies of extracts, or sharing copies beyond the class it was intended for, so for example cannot be uploaded to a VLE. This kind of activity is covered by licensing agreements that educational establishments in the UK have with CLA, such as the CLA Education Licence or the CLA Higher Education Licence.

It is important to note that these exceptions exist to support access to content in non-commercial activities. The Copyright and Related Rights Regulations 2003 changed UK copyright law so that most commercial organisations could no longer rely on copyright exceptions to make copies for commercial purposes. Limited “fair dealing” exceptions that many businesses relied on in the past are no longer applicable, and organisations are now required to obtain a CLA Licence to ensure legal copying from books, magazines, journals etc.

What does non-commercial use mean?

Businesses are generally not covered under fair dealing exceptions and require a licence for the use of copyrighted content.

In the context of copyright law and fair dealing, non-commercial uses refer to activities that are undertaken without the intention of generating profit or financial gain. This distinction is crucial because fair dealing exceptions typically apply to specific non-commercial purposes, such as personal research, personal educational purposes, criticism, or reporting current events.

It is also important to note that reposting published content online is considered commercial publication, even if there’s no direct financial gain, under UK law. This is why CLA built Website Republishing permissions into its Business Licence and Public Administration Licence.

This understanding highlights the importance of obtaining appropriate licences, such as a CLA Licence, for the use of copyrighted content in commercial contexts, which offers broader permissions and legal protection.

Is it fair dealing?

The fair dealing exceptions can be useful when it comes to reusing published content in a non-commercial setting, but there are some things to consider for fair dealing to apply:

• Purpose: Does the use come within one of the specific exceptions e.g. non-commercial research, private study, criticism, or review? or reporting current events?
• Acquisition: Have you acquired the material lawfully and fairly?
• Amount: Is the amount you are copying reasonable and appropriate and not excessive under the circumstances? Was it necessary to use the amount taken?
• Acknowledgement: Have you acknowledged the author or source of the material?
• Alternatives: Was use of the specific work necessary or could different work have been used instead?
• Effect on the market: Does your use of the work compete with the original work and affect the market for it? Are you depriving the content creator of revenue?
• How would a fair-minded and honest person have dealt with the work?

Fair dealing offers a certain degree of flexibility under these specific circumstances, but before relying on it, it is important to ask yourself these key questions. The relative importance of any one factor will vary according to the facts of the case and the type of use of the work. It is your responsibility to assess your use of the material against these factors and consider whether the use infringes copyright of the owner.

Fair dealing vs. Fair Use: Understanding the differences

The term Fair dealing is used in the UK, but it is often confused with the US concept of “Fair Use”. While similar, there are differences in the scope of each. These terms are not interchangeable, and a use that is regarded as fair in the US may be regarded as infringement in the UK.

Key distinctions include:

• Scope and flexibility: Fair use in the US is potentially broader in scope, allowing for uses outside of specific categories as long as they are considered “fair” within the factors set out in legislation. As mentioned earlier, fair dealing only permits the reuse of content under specific and limited exceptions.
• The purpose and character of the use: The US places significant emphasis on whether the use is transformative – that is, whether it adds something new with a further purpose or different character that does not substitute for the original. This is not a consideration under copyright law in the UK.

Navigate copyright securely with a CLA Licence

A CLA licence is a necessary tool in the complex copyright landscape, bridging the gap between fair dealing exemption and offering an expansive framework for legal content reuse. Where fair dealing exceptions are ambiguous and subject to interpretation, CLA licences provide legal certainty and peace of mind for business professionals.

CLA licences offer broad access to content protected by copyright (over 16 million print and digital publications), ensure legal compliance, and reduce the risk of copyright infringement. They give content users peace of mind through a simplified process that covers multiple copying activities.

For example, in a business setting, copyright exceptions do not cover making multiple copies of published material for internal training or presentations. A CLA Business Licence does allow for broader copying and distribution within an organisation.

A CLA Education Licence lets teachers copy and share materials beyond the limited ‘illustration for instruction’ exception to which fair dealing applies. The availability of the CLA Education Licence means that copying of extracts of works are not otherwise permitted.

Types of CLA Licences

CLA offers a range of licences aimed at a wide range of sectors across the UK, including but not limited to:

• Education Licence: For schools and colleges
• Higher Education Licence: For universities and HEIs
• Business Licences: For commercial organisations, law firms, media agencies etc.
• Public Sector Licences: For government bodies and public entities

CLA licenses over 40,000 UK schools, universities, government bodies and organisations, facilitating the lawful and efficient reuse of published content by 12.7 million students and over 9.5 million employees. These licences play a vital role in the UK’s creative ecosystem, helping professionals access content to collaborate efficiently, while ensuring that creators and rightsholders are fairly remunerated for their work.

Understanding fair dealing as applied to permitted copyright exceptions is crucial for anyone engaging with published content in the UK. It ensures respect for creators’ rights while allowing for certain freedoms in non-commercial content use. However, to ensure compliance beyond the permitted exceptions, especially in a commercial setting, consider purchasing a CLA Licence.

A CLA Licence will enable you to use copyright protected material with confidence and responsibility without having to navigate the complexities of copyright law.

Act responsibly. Protect your organisation. Support creatives. Copy, Right.

Other resources

• Intellectual Property Office (IPO): Exceptions to Copyright Guidance
• British Copyright Council (BCC): Exceptions and Fair dealing
• CLA Licences: Actions that require a licence

DISCLAIMER

Please note that this article should not be considered as legal advice and should not be relied on when determining whether a particular use of work would infringe copyright. It is always best practice to seek the permission of the rights owner if unsure.