Copyright

Copyright is a type of intellectual property that grants the owner the exclusive right to copy, distribute, adapt, display and perform a creative work. This exclusive right can be subject to limitations and exceptions that take into consideration specific public interests such as education, culture and personal uses. Exceptions to copyright seek to balance rights holders’ exclusive rights with wider societal considerations.

Under exceptions, copyright protected works may be used without permission from the rights holder.

Current copyright exceptions in UK law were introduced in the Copyright, Designs and Patents Act 1988. These were extended and modified in the 2014 reforms to UK copyright legislation in response to changes in digital technology. This included additional exceptions such as text and data mining for non-commercial purposes and the quotation exception.

The use of a copyrighted work under many exceptions in the UK, however, must qualify as ‘fair dealing’ and therefore crucially is a justification, rather than a right, per se. 

There is no statutory definition of fair dealing – it will always be a matter of fact, degree and impression in each case. Since the exceptions to copyright are not rights but a legal defence, the use of a copyright work under the exceptions needs to be both reasonable and justifiable.

Factors that have been identified by the courts as relevant in determining whether a particular dealing with a work is fair include: 

Does using the work affect the market for the original work? If a use of a work acts as a substitute for it, causing the owner to lose revenue, then it is not likely to be fair. 
Is the amount of the work taken reasonable and appropriate?  
Was it necessary to use the amount that was taken? Usually, only part of a work may be used. 

Examples of the UK’s copyright exceptions relevant to universities, their staff and students are listed below 

Non-commercial research and private study (Section 29 CDPA)

• This exception is of high relevance to students and researchers as it permits them to make copies of copyright works for the purposes of ‘non-commercial research’ and ‘private study’.
• Non-commercial would be any research not carried out for direct or indirect economic or commercial advantage. Commercial research is not permitted under this exception.
• It applies to all types of copyright works, there are however some restrictions for computer programmes.
• The use of this exception must qualify as ‘fair dealing’. Therefore, only a single copy should be made and be limited in most circumstances to an extract of a work, such a chapter from a book or a single article from a journal.
• It is not permitted for an individual or another person working with them to obtain copies of substantially the same material for substantially the same purposes at substantially the same time.
• This exception cannot be overridden by any contract. 
• Non-commercial research must acknowledge the author and source of any in-copyright material used under the exception unless impossible for reasons of practicality or otherwise.
• Publicly accessible libraries and libraries of educational establishments may make copies on behalf of individuals if it is limited to a single copy of a single article from a periodical or a reasonable proportion of any other published work. The copy can only be for private study or non-commercial research and the individual must sign a declaration supporting this.
• All archives and libraries in the UK may make and supply a single copy of the whole or part of unpublished copyright works that are deposited in their library or archive providing that the copyright holder has not prohibited copying, the use is for private study or non-commercial research and a declaration in writing has been signed to that effect.

Illustration for instruction (Section 32 CDPA)

• A copy of any type of copyright work can be used for the sole purpose of illustration for instruction if the use is for a non-commercial purpose, the person making the copy is giving or receiving instruction and the copy is accompanied by a sufficient acknowledgement.
• The use of a work under this exception must qualify as ‘fair dealing’. The amount copied and used should be limited to what is required to illustrate the teaching point.
• Educational activities such as facilitated classroom teaching, in-house training and PhD supervision, all benefit from this exception. For example, this could include the use of images within projected presentations in a lecture. 
• This exception cannot be overridden by a contract. 
• This exception does not cover making multiple copies available to students for example creating course materials.
• This exception also includes copying for examination. This applies to both setting and answering examinations/assessment. Answering an examination question might include writing a dissertation or thesis to meet the requirements of a qualification.
• It would not cover any subsequent publication of a dissertation or thesis. If it is to be published permission would be needed from the copyright holder or rely on another exception such as quotation.

Criticism, review and quotation (Section 30 CPDA) 

• The original Copyright Designs and Patents Act 1988 included an exception to copyright under fair dealing for the purposes of criticism and review. In 2014 the CPDA was amended to include an additional broader quotation exception.
• Under the quotation exception any type of copyright work can be copied and quoted from for the purpose of criticism, review, or otherwise.
• This exception only applies to published works i.e. works that have been made lawfully available to the public.
• The use of a work under this exception must qualify as ‘fair dealing’. The amount used must be no more than you need to make your point and not act as a substitute for the original. The work and its author must also be sufficiently acknowledged (unless this would be impossible for reasons of practicality or otherwise)
• An extract from a work could be used under this exception if the work itself is being written about, or if use of the work is supporting exploration of a specific theme or subject. For example, a student could include extracts of a relevant published text in their PHD thesis if it is sufficiently acknowledged.
• The UK’s Intellectual Property Office has advised that in most circumstances it is unlikely using a photograph under the quotation exception would qualify as fair dealing.
• The quotation exception cannot be overridden with any contract. 

Text and data mining (Section 29A CPDA)

• Text and data mining is the computational analysis of large amounts of data that may be protected by copyright to identify patterns and other interesting information that would not be possible through human reading.
• This exception permits the copying required for conducting the analysis. It requires that the sole purpose of the analysis is for non-commercial research, that the person carrying it out must have lawful access to the work and that the copy is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise). Examples of lawful access would include access through licences or subscriptions.
• The copies of the copyright works made for the analysis may not be transferred to another person or used for any purpose other than the non-commercial research without the permission of the copyright holder.
• This exception cannot be overridden by a contract. However, databases are often protected by technological measures that impede systematic access. 

Disabled persons: (Section 31 A-F CPDA)

• Disabled persons or someone acting on their behalf are permitted to make an accessible copy of any type of copyright work, published or unpublished, so long as they have lawful access to that work. This could include a personal copy they have purchased or a book available from a library. 
• Disabled persons are defined as persons who have a physical or mental impairment that prevents them from enjoying a copyright work substantially or to the same degree as a person without a disability.
• An accessible copy is a version that enables a disabled person to access a work as feasibly and comfortably as a person without a disability. This may involve adding special navigational features, but no changes may be made that are not required to address the persons disability so as to protect the author’s moral rights regard the integrity of the work. The moral right for the author to be attributed also applies if it has been asserted.
• The accessible copy can be made available as hard copy or electronically however it can only be used by the disabled person for their own personal use.
• Authorised bodies including educational establishments may make an accessible copy and supply them to a disabled person, someone acting on their behalf or another authorised body.
• Authorised bodies must take appropriate steps to discourage unauthorised copying of the accessible copy and must publish information on how it complies with this exception. They may also be required to supply a list of the works they have as accessible copies and the available formats.
• Authorised bodies are permitted to charge fees for making and supplying accessible copies but only to cover their costs.

Educational exceptions available solely for educational establishments

Copying and use of extracts of works by educational establishments (Section 36 CPDA)

• Copies of extracts any kind of work except for free standing artistic works or broadcasts can be made by educational establishments and used for non-commercial purposes of instruction.
• Copies must be accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise).
• Copies of extracts can be made available to the staff and students of the educational establishment but off premises access must be through a secure electronic network accessible only to students and staff.
• Not more than 5% of a work may be copied by or on behalf of an educational establishment in any period of 12 months, and for these purposes a work which incorporates another work is treated as a single work, for example an image from a book or an article from a journal.
• This exception does not apply if there is a licensing scheme available that covers the activity. The terms of licensing schemes may not restrict the amount of a work that can be copied to less than that permitted under the exception.
• The Copyright Licensing Agency has a licensing scheme covering published works and the embedded artistic works they include. Therefore, this exception can only be used for unpublished works or works not included under a CLA licence. Cranfield however has a CLA Higher Education licence that permits the copying of extracts. 

Performing, playing or showing work in course of activities of educational establishment (Section 34 CPDA)

• The performance of literary, dramatic or musical works by students, teachers or any person giving instruction and the playing and showing of films and sound recordings for the purposes of instruction is permitted at on the premises of educational establishments as long as the audience is comprised of students, teachers or other persons directly connected with the activities of the establishment.

Recording by educational establishments of broadcasts (Section 35 CPDA)

• Educational establishments may make recordings of broadcasts and may show them to students and staff on premises for non-commercial educational purposes. They can also be communicated to students and staff off premises via a secure electronic network if it is only accessible by them.
• Any recording made should be accompanied by a sufficient acknowledgement.
• This exception does not apply if there is a licensing scheme available that covers the activity and, in the UK, the Educational Recording Agency provides such a licence. Therefore, this exception can only be used for broadcasts not included under the ERA licence scheme, however Cranfield has an ERA licence. 

Copyright Exceptions- International perspective 

Exceptions to copyright are country specific. This means that users of copyright works based in the UK are subject to the specific exceptions to copyright outlined in the UK’s copyright laws. 

Since each country will have its own exceptions to copyright, which are likely to vary from one country to another, users in one country will be able to reproduce copyright works under copyright exceptions, in ways that users in other countries will not. 

Reproducing copyright works online by relying on the exceptions to copyright is harder to justify and riskier therefore, because of this lack of global harmonisation between the copyright laws in each country.  

However, some exceptions, like “Quotation” often appear internationally, and therefore might be used to justify the online use of copyright works.