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 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.

What is Fair dealing?

UK copyright legislation contains fair-dealing exceptions in respect of certain specific 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
• Criticism and review
• Reporting current events
• Parody, caricature, and pastiche
• Educational uses of illustration for instruction including as part of examination

Is it fair dealing?

The fair dealing exceptions can be useful when it comes to reusing published content, 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, 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?

Before relying on fair dealing, 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 in action

Examples of activities which may fall under the permitted exceptions under copyright legislation across a variety of professional scenarios include those below. All of these are subject to the specific facts and circumstances of the situation amounting to fair dealing:

• Educators and Academics: Teachers and lecturers using very short excerpts for illustration purposes in classroom teaching. Researchers quoting from a published work for a scholarly paper, provided the quotation is no more than is required for the specific purpose.
• Journalists and Media Professionals: News reporters using short clips or quotes from films, music, or books for the purposes of criticism and review or for reporting current events. Fair dealing for the purpose of reporting current events does not apply to photographs.
• Artists, Comedians, and Performers: Creating a parody of a song for a comedy show or a cartoonist using a famous painting as a basis for a satirical artwork.
• Critics and Reviewers: Book reviewers quoting short passages from a novel or film critics quoting a short passage from a film in a review blog.
• IT Professionals and Developers: Referencing code snippets or excerpts from software manuals which had already been made available to the public for educational blog posts or tutorials provided the use was no more than was required for the specific purpose, was accompanied by a sufficient acknowledgement and complied with general fair dealing criteria.

The specific facts and circumstances of each case must be carefully considered and assessed to see if the activities fall under a particular exception and whether fair dealing applies. This will be a matter of fact, degree and impression in each case.

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.

Complementing copyright exceptions with a CLA Licence

While fair dealing exceptions are invaluable and ensure fair access to published work in many cases, they leave a lot up to subjective assessment and consideration.

CLA licences complement the permitted exceptions and offer an expansion to these allowances, providing a more comprehensive and flexible solution to content reuse. 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.

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
• Business Licences: For commercial organisations, law firms, media agencies etc.
• Media Monitoring Organisation Licence: For for organisations that copy, scrape or index print or online publisher content for the supply of commercial monitoring or aggregation services
• Public Sector Licence: For government bodies and public entities

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 content use. However, to ensure compliance beyond the permitted exceptions, 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.

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.

Other resources

• Intellectual Property Office (IPO): Exceptions to Copyright Guidance
• British Copyright Council (BCC): Exceptions and Fair dealing