Copyright law in the UK is governed by Part I of the Copyright, Designs and Patents Act 1988 (CDPA, the Act). It has been subject to various amendments over time including revisions recognising the digital age in 2003, and with a recognition of creative industry and education in 2014. 

The UK legislation has been updated on a number of occasions to harmonise it with the provisions of international treaties and conventions to which the UK is a signatory. 

Relevance of copyright UK FE and HE

Understanding copyright law and how it applies is of fundamental importance to FE and HE because as users, producers and disseminators of information they need to maximise their ability to exploit the value in their work as well as minimise the risk of infringement and the consequent liability towards others.  

For example, the internet facilitates the open dissemination of information in an unprecedented manner. Those working in the FE and HE sectors need to be aware that their work will often contain copyright-protected content from others.  Just because materials (such as internet content, software, databases and journals) are openly available does not necessarily mean that they may be freely used.

Usually such materials are made available under licence terms and conditions. Institutions must ensure that digital resources are used in accordance with those terms of use.

Research data, teaching materials, lecture notes may all be works which attract copyright protection.

A work is entitled to copyright protection if:

• It is of a type protected by copyright under the Act
• It is recorded in some form – eg in writing, by a sound recording, on a computer disk, or in a printed form
• The work meets the requisite degree of originality. A work is original if adequate skill, labour and judgment is expended on creating it.

What this means is that if an individual writes down an original piece of work, for example, this work is protected by copyright law.

The types of copyright works are broadly categorised into:

• Original literary, dramatic, artistic or musical works
• Sound recordings, films or broadcasts
• The typographical arrangement of published editions.

Literary work also includes:

• A table or compilation other than a database
• A computer program
• Preparatory design material for a computer program
• A database.

Dramatic work includes a work of dance or mime. Musical work means any work consisting of music. However the words accompanying the music have separate copyright (the lyrics of a song are protected as a literary work), there is also a separate right in the performance of the song, and also in any recording that might be made. Audio-visual works may therefore contain many layers of rights (potentially shared between a number of rightsholders).

Most work that is created in colleges and universities, including teaching and learning materials, will be protected by copyright law. So, for example, where a lecturer creates an online learning module including materials in various formats that they have authored themselves, the works in the module will be protected by copyright law.

Where third party materials are included in the module permission from the rightsholders to make use of them in this way is necessary, unless use can be made of a statutory exception. Using education exceptions and sector specific licenses are the usual ways that third party materials are copied and used in the education context. 

Copyright allows a rightsholder to control use of the work in question. The copyright owner, subject to copyright law exceptions, controls who may:

• Copy the work
• Issue copies of the work to the public
• Rent or lend the work to the public
• Perform, show or play the work in public
• Communicate the work to the public – this includes making the work available online, and broadcasting the work
• Make an adaptation of the work or do any of the above in relation to an adaptation.

The definition of 'public' in relation to FE and HE is likely to include staff and students. So it may be infringement by communication to the public to include on the college or university intranet, a student’s or a copyright owner’s work without their permission.  

This would be the case where, for example, a video from YouTube was embedded into a VLE. Although copying may not take place the embedding is likely to be considered 'communication to the public' which is a restricted act and would require permission from the rightsholder.

Copyright can exist separately and collectively in the components of any particular work. For example, the elements that constitute a website may include the web page, title, sound effects, images or pictures on the page and the address or domain name. Apart from the copyright of the website itself, each of these components grant separate rights to their owners.

Who owns what in a copyright work?

Copyright arises automatically, and the author or creator of a work is usually the first copyright owner. However, ownership can be transferred (known assignment, or assignation in Scotland). The copyright owner may grant permission for the use of the copyright material subject to certain conditions.

Much of the copying which takes place in the FE and HE sector is with the permission of the copyright owner, usually by means of a 'licence'. Read more in the section on licences.

Copyright owner

The first owner of copyright in a work is usually the person who created the work. Joint ownership may arise where more than one author is involved in creating a work.

Computer generated works

In the case of computer generated works, the creator is the person by whom the arrangement necessary for the creation of the work is undertaken.

Employer-employee relationship

Under s.11(2) of the CPDA, the basic legal position is that copyright of works created during the course of employment will be owned by the employer unless an agreement to the contrary is in place.

Within FE and HE

The beneficiaries of copyright ownership in FE and HE can be its staff (lecturing, research, general), outside contractors or students as well as the institution itself. Research data, teaching materials, lecture notes may all be works which attract copyright protection. 

Staff

Copyright ownership of works created by college and university staff is principally dependent on whether the creation of the work was done to meet the employee’s contract of employment. The rule applies irrespective of whether the person used the employer’s resources to produce the work and whether the work was produced during working hours.

This issue is important within FE and HE. Many academics produce content in the form of articles and other publications. In some cases, their primary job specification may only relate to teaching or lecturing, without mention of the production of teaching and learning materials. 

Some colleges and universities choose to waive their copyright in all or some teaching and learning materials, and use such works under licence from the academic instead. This might be done to encourage creation of such materials, and to recognise the person-linked nature of them.

Further, one of the common requirements currently included in the contract of employment for HE academic staff is to raise the research profile through publications in journals. In terms of ownership of research, it should be noted that some publications require assignment of copyright to the publication.

Collaborative research

In the case of collaborative research partnership between FE and HE institutions and an outside partner, prior agreement should reached as to ownership of copyright and other IPR. This may provide for joint ownership.

Students

The student will usually be the first owner of the intellectual property rights in his or her work. However there may be circumstances where the institution will wish to assert or obtain ownership, or acquire a licence to use the materials. Read more about the significance of copyright for students.

In summary, work created by staff members as part of their employment copyright will belong to the employer institution unless there is a specific agreement otherwise. Students on the other hand will be the owners of copyright in work they create, unless a valid, fair agreement provides otherwise.

Further reading

Ownership of copyright works is explained further on the IPO website.

A database, that is a collection of data or other material that is arranged in such a way so that the items are individually accessible, may be protected by copyright as a literary work and/or database right. This protection can apply to both paper and electronic databases.

• For copyright protection to apply the database must have originality in the selection or arrangement of the contents
• For database right to apply there must have been a substantial investment in obtaining, verifying or presenting its contents.

It is possible that a particular database will satisfy both these requirements so that both copyright and the database right apply.

There is no registration for the database right - it is an automatic right like copyright and commences as soon as the material that can be protected exists in a recorded form. However, the term of protection afforded by the database right is much shorter than under copyright. Database rights lasts for fifteen years from making, but, if published during this time, then the term is fifteen years from publication.

What this means is that where substantial investment has taken place in collecting and authenticating data, the database right will apply giving fifteen years of protection to the collection. 

Related rights

The works of performers, sound recording producers and broadcasting organisations are protected by means of 'related' or 'neighbouring' rights.

Moral rights

The exclusive rights of a copyright owner can be sold or passed on.  In addition to these rights, a copyright owner also has certain rights which remain with the original creator and affect how subsequent owners deal with the work. Such rights are known as moral rights.

Moral rights comprise:

• The right of the creator to be identified as the author of a work (also called the ‘right of attribution’ or ‘right to paternity’)
• The right to object to derogatory treatment (prevent his work being subjected to any distortion or mutilation) of his/her work or derogatory action which would ultimately be prejudicial to his/her honour or reputation (also known as the ‘right of integrity’)
• The right to object to false attribution, ie the right not to be named as the author of a work which he or she did not create.

However, the right to paternity and the right to be identified as the creator do not apply to anything done by or with the authority of the copyright owner where the copyright in the work originally vested in the creator’s employer. This will be the case for most work created by employed lecturers and teachers in FE and HE. 

Further reading

Moral rights are explained in more detail on the IPO website.

Copyright protection starts as soon as a work is created. Once copyright has expired, anyone can use or copy the work. The duration of copyright is dependent on a number of factors including – the type of work in question, whether the work is published or unpublished, whether the creator is known or unknown, and whether transitional arrangements from previous copyright legislation apply. 

However, in general terms the list below is a useful starting point.

• Literary, dramatic, musical and artistic works: the lifetime of the author plus a period of 70 years from the end of the year in which the author died
• Computer generated works: 50 years from the end of the year in which the work was made.  A work is deemed to be computer generated where there is 'no human author'
• Video recordings (films): Copyright expires at the end of the period of 70 years from the end of the calendar year in which the death occurs of the last to die of the following persons—
  (a) The principal director
  (b) The author of the screenplay
  (c) The author of the dialogue
  (d) The composer of music specially created for and used in the film.

Where the identity of such persons is unknown copyright expires at the end of 70 years from the end of the year in which the film was made, or, if during that period the film is made available to the public, 70 years from the end of the year in which it is first made available.

If there is no person falling within the categories above then copyright expires at the end of 50 years from the end of the year in which the film was made.

• Sound recordings: 50 years from the end of the year in which it was made, or, if published or made available to the public during this time, 70 years from the end of the year in which it is first published or made available to the public
• Broadcasts: 50 years from the end of the year the broadcast was made
• Typographical arrangement of published editions: 25 years from the end of the year of first publication.

Where there are joint authors the copyright term is calculated by reference to the last surviving author.

In relation to sound recordings the term of copyright was extended to that specified above as of 1 November 2013.  In relation to other works the above terms of protection were introduced or confirmed on 1 January 1996 when copyright terms throughout the EEA were harmonised. They apply to many works created before that date.

Works that were still in copyright on 31 December 1995 had copyright terms extended where the new rules on copyright terms gave a longer term. The term of protection is particularly complicated for photographs taken before 1 January 1996.

A flow chart which may be helpful in clarifying the duration of copyright in a literary, dramatic, musical work or artistic work is available on the British Library website. It is reproduced there with permission from Padfield (2004) Copyright for Archivists and Users of Archives, 2^nd Edition, Facet Publishing.

Further reading on how long copyright lasts is available on the Intellectual Property Office website.

Copyright is infringed when one of the rights of the copyright owner is performed by someone without the permission of the copyright owner or of the law. Infringement usually involves copying, issuing copies, renting or lending, performing, showing, playing, communicating or adapting the copyright work.  

This infringement is called primary infringement. Providing facilities for infringing the exclusive rights or assisting in the making or distribution of infringing copies is also treated as an infringement and is referred to as secondary infringement.

Copyright infringement occurs where a whole work or a substantial part of a work is used without permission to carry out one of the exclusive rights of the copyright holder. However what constitutes a substantial part is not defined in copyright law.  It has been interpreted by the courts to mean a significant part of a work in qualitative terms even where this might not comprise a large part of the work. 

The quality of the ‘part’ and its value to the user must be taken into account as well as its length in determining whether it is ‘substantial’. It is possible that a small portion of a work will still be a substantial part. The Mona Lisa smile on the original painting would be a good example of a small portion of a work which if it was still in copyright today would likely be defined as substantial.

In the Infopaq case (Infopaq International A/S v Danske Dagblades Forening, Case C‑5/08, 16 July 2009), the court held that even eleven word long extracts from newspapers can amount to acts of copyright infringement where they are 'the expression of the intellectual creation of their author'.

Making temporary copies

Browsing of the internet creates temporary copies of web pages on the memory of the device. The making of temporary copies is not an infringement so long as it is a transient copy, has no economic significance and is done solely for the transmission of a work or for its lawful use. 

Further details on copyright infringement are available on the Intellectual Property Office website.

Much of the copying that takes place in education is with the permission of the copyright owner, usually by means of a licence. In certain circumstances copyright law provides exceptions in the form of permitted acts which do not require the permission of the copyright owner, and these are examined below:

Fair dealing for research and private study (s.29 CDPA)

UK copyright law permits fair dealing with a work for the purposes of non‑commercial research and private study. This covers copying of all types of copyright work. It means that researchers and students can copy extracts from sound recordings, films and broadcast as well as literary, dramatic and musical works for these purposes.

The word ‘research’ is not defined but in terms of s.29 CDPA means any form of research as long as its purpose is non-commercial.

The law requires that acknowledgement be given to the copied source when used in research or private study. For academic staff and research students, this creates the obligation to use proper citations. The only exception may be situations where acknowledgement would be impossible for practical reasons.

Only a single copy may be made (either by the researcher or student, or for another person researching or studying). Fair dealing requires that you only copy as much of a work as is necessary for the purpose, and that any copying does not impact upon the rightsholder’s legitimate exploitation of their work. Fair dealing for the purpose of non-commercial research and private study will not cover the making of multiple copies.

The exception cannot be overridden by contract so researchers will be able to make copies irrespective of contract or licence terms which apply to the work in question.

Text and data mining (s.29A)

Section 29A CDPA enables UK researchers to copy a work in order to analyse it using text and data mining technologies without risk of infringement. The exception applies where the analysis is for the purpose of non-commercial research. The person relying on the exception must already have lawful access to the particular copyright work so where a subscription to a journal, for example, is required to access a work then this will still be necessary.

Contract terms cannot override the exception so provided a researcher has lawful access to the works it will not be necessary to make sure data mining is not excluded before the works can be analysed.

Illustration for instruction (s.32)

Under section 32 CDPA all types of copyright works can be copied for the sole purpose of illustration for instruction - so lecturers are able to use extracts from films, sound recordings and broadcasts as well as text, music and artistic works to illustrate a teaching point.  The exception is subject to fair dealing so copying is limited to what is required for the purpose and must not impact on the rightsholder.

Copying can be done not only by hand but using digital technology such as interactive whiteboards. Copying must be done by a person giving or receiving instruction and is not limited to copying in educational establishments. The only requirement is that the copying is for a non-commercial purpose.

The work must be sufficiently acknowledged, and contract terms cannot override the availability of the exception.

Examination papers

Illustration for instruction includes copying for the purpose of examination. For tutors and lecturers involved in in setting examination papers the law requires them to include sufficient acknowledgement of the copied material where practicable. Students answering questions in exams are not required to do so. 

As it falls within illustration for instruction, copying for an examination is subject to fair dealing which means that it has to be considered whether use of the work is fair which in practice may mean limiting copying to shorter extracts where possible, and restricting who has access to works used to those being examined. 

Copying and use of extracts (s.36)

Section 36 CDPA allows colleges and universities to make copies of extracts of all types of copyright works except broadcasts and standalone artistic works (such as single images) provided the copy is made for the purposes of instruction for a non-commercial purpose and accompanied by sufficient acknowledgement (unless this would be impossible for practical or other reasons). 

Not more than 5% of a work can be copied by or on behalf of an educational establishment in any period of 12 months – this therefore requires some degree of logging to ensure the same work isn’t being copied beyond the 5% restriction.

Unlike s.32 (illustration for instruction) this exception can only be used by educational establishments.

Furthermore, the exception only applies where there is no licence available for the work which the educational establishment should have known about. This means that for works covered by the Copyright Licensing Agency Ltd (CLA) licence colleges and universities will still require the CLA licence to copy extracts and cannot rely on the exception. This will be the case for most published text works.

A licence cannot restrict the proportion of a work which can be copied to less than would be permitted under the exception.

Criticism or review (s.30 CDPA)

Section 30 CDPA provides a fair dealing exception which permits the use of a work for the purpose of criticism and review if it is accompanied by sufficient acknowledgement and provided that the work has been made available to the public. 

There is limited case law on what constitutes criticism and review but in order for the exception to apply the copying of the work must be truly connected with review and criticism and not purely for illustrative or enhancement purposes. The requirement that the criticism or review be of 'a work' or performance of 'a work' is construed liberally and can be made out where the criticism or review is not aimed at a particular work but rather the thoughts underlying it.

For example in Pro Sieben Media AG v Carlton UK Television Ltd (2000) ECDR 110, the defendants’ television broadcast sought to criticise cheque-book journalism of all types, and used a clip from a German television broadcast as one illustration of the matter. The Court of Appeal held that the fair dealing defence was applicable as the effect of the broadcast was to criticise the distortion of truth which cheque-book journalism could produce.

In Time Warner Entertainment Co plc v Channel Four Television Corporation plc (1994) EMLR 1, the defendants included clips of violent scenes from the film A Clockwork Orange in a programme criticising the withdrawal from distribution of the film on the basis of its violent content. It was accepted that the high quality of review and criticism in the programme and the fact that the programme was a documentary led to the conclusion that Channel 4 were using the excerpts in a fair dealing context.

Similar to the fair dealing exceptions already mentioned, the use of a work for criticism and review must be fair, so must not duly impinge upon the copyright owner’s rights of exploitation, nor go beyond what is needed for the review or criticism.

Any review or criticism should be considered in its context as to whether it can be considered fair. The law does not give specific guidelines on what constitutes ‘fair dealing’; but it may be relevant to take into account the following:

• The length and importance of the quotation(s)
• The amount quoted in relation to the commentary
• The extent to which the work competes with or rivals the work quoted
• The extent to which the use is commercial rather than academic, for example.

There is no fair dealing exception when quoting from unpublished material.

Broadcasts (s.35)

Copyright law permits the recording of broadcasts by educational establishments for the non-commercial educational purposes of that establishment, provided that the recording is accompanied by sufficient acknowledgement (unless this would be impossible). Section 35 enables institutions to provide staff and students access to recordings of broadcasts off-campus. 

Copyright law permits the recording of broadcasts by educational establishments for the non-commercial educational purposes of that establishment, provided that the recording is accompanied by sufficient acknowledgement (unless this would be impossible). Section 35 enables institutions to provide staff and students access to recordings of broadcasts off-campus.

However the exception only applies where the broadcast is not covered by a licence the institution should have known about.

The majority of broadcasts colleges and universities might wish to record will be covered by the Educational Recording Agency (ERA) licence which permits the recording of broadcasts for the non-commercial educational purposes of that establishment. For those broadcasts institutions require the licence and cannot rely on the exception.

Since 1 August 2007 ERA has offered its licensees the opportunity to take out an additional licence, called the 'ERA Plus Licence', which enables licensed ERA Recordings to be accessed by students and lecturers online whether they are on the premises of their college or university, or at home or working elsewhere within the UK. 

For institutions wising to provide access to recordings of broadcasts off campus they will require the ERA Plus licence as the exception will not apply. It is the ERA’s intention to offer a single, combined licence from 1 August 2014.

Accessible copies (s.31A-s.31F)

A disabled person, or someone on their behalf including an FE or HE institution, may make accessible copies of a work for a disabled person if it is for his or her personal use. The disabled person or the institution must already have a legitimate master copy (bought or borrowed) and a suitable accessible copy of the work must not be commercially available at a reasonable cost.

An additional exception allows colleges and universities (as authorised bodies) to make multiple copies for disabled learners where the author of the work is acknowledged and a statement is included that the copies are made under s.31B CDPA. If a licence term is more restrictive than what is permitted in law with regard to adaptation for disability, then that licence term is unenforceable.

Further information on making learning materials accessible is available on the Intellectual Property Office website. 

Libraries and archives (ss.40B-43)

By virtue of s.42A CDPA, a librarian can copy a reasonable proportion of a published work for staff or students without infringement, where a relevant written declaration is provided. Users must provide a copyright declaration form confirming the use is purely non-commercial prior to making a request. Whole or part of unpublished works can be copied under similar restrictions (under s.43 CDPA), except where this has been prohibited by the copyright owner.

Section 41 CDPA allows libraries to make and supply a copy of a published work to another library where permission cannot reasonably be obtained.

Section 42 CDPA allows an institution to make replacement or preservation copies of a work which is part of its permanent collection provided it is not reasonably practicable to purchase a copy.

In addition, s.40B CDPA permits educational establishments to make works available via dedicated terminals on the premises as long as the work, or a copy, has been lawfully acquired, is made available for research and private study only and is communicated in compliance with any relevant licence. (s.40B).

Useful links 

Further reading on the exceptions to copyright is available on the Intellectual Property Office website.

Much of the copying that takes place in education is with the permission of the copyright owner, usually by means of a licence. A licence is a contractual agreement between the copyright owner and user that limits how the user can use the work. Copyright owners are largely free to deal with copyright in any way that they see fit. Dealings with copyright take two basic forms. 

• First, there is assignment of copyright which has the effect of transferring ownership of the rights to another person. 
• Second, there is licensing, which is the grant of permission, often subject to conditions as to format, extent, purpose and time, allowing the ‘licensee’ to perform some act in respect of copyright that would otherwise be an infringement of the owner’s copyright. 

Licences may be exclusive (meaning the owner agrees not to license the same rights to anyone else) or, more commonly, non-exclusive (meaning the same rights can be granted to others).

Jisc Collections

Jisc Collections negotiates with publishers at a national level to procure and license affordable digital content for education and research in the UK. Jisc Model Licences are negotiated to obtain favourable licence terms for education. You can get to know and understand the Jisc collection of licences in order to make sure that your institution is getting the most out of the online resources that are subscribed to.

Blanket licences

Many groups of copyright owners are represented by a collecting society. A collecting society is able to negotiate and agree licences with users on behalf of owners and will collect any royalties the owners are owed. In many cases a collecting society will offer a blanket licence for all the works by owners it represents, for example for music to be played in a shop or restaurant.

Such blanket licences have been negotiated for the education sector. One set of blanket licences is the Copyright Licensing Agency Ltd (CLA) licences that cover photocopying and the right to scan and copy from digital titles as well as print.  Further details can be found on the CLA website. 

Open educational resources (OERs)

Open educational resources (OERs) are teaching and learning materials that are freely available for everyone to use and further explanation is available in our OER Guide.  OERs are increasingly being made available by colleges, universities and other educational bodies. They are resources licensed in a way such that they can be re-used, re-purposed, re-mixed and re-distributed.

There are a number of licence options for institutions considering releasing OERs, the most common being various iterations of the Creative Commons licence. Where the person or institution wishing to release the OER is the copyright owner of the entire work, the release of it under a Creative Commons licence is straightforward.  

It is a much more difficult issue where materials belonging to someone else are included. Clearing the materials for release under an open licence is necessary. Alternatively it may also be possible to remove the third party material, and limit the resource to materials where the copyright provenance is known.

Creative Commons

Some authors and rights holders decide to allow relatively open access to their work without charge. One way to do this is by using a Creative Commons licence. Creative Commons has been embraced by many as a way for content creators to exercise some control whilst generally sharing their work.

Orphan works

Orphan works are copyrighted material that is believed or known to be in copyright but whose copyright owner is unknown or untraceable. In order to use these works, and provide access to them, institutions have to effectively manage the associated rights and permissions and risks in using these works. Guidance on how to get permission to copy a creative work for which the right holder(s) cannot be found is available on the Intellectual Property Office website.

Further information on copyright licenses is available on the Intellectual Property Office website. 

The enforcement of copyright is the responsibility of the copyright holder. Copyright is essentially a private right and it is the rightsholder themselves who must take legal action against someone who infringes their rights.  

By application to the courts the copyright owner can:

• Stop a person making further infringing use of the material by seeking an injunction, interdict or other order
• Claim damages from those who infringe their copyright
• Require the infringing party to give up or destroy the infringing. 

Additional remedies are available for commercial infringement. Deliberate infringement of copyright for a commercial purpose (often called 'piracy') may be a criminal offence.

Music and other file-sharing without permission can be unlawful and student or staff who trade, swap or share music files illegally over the internet open themselves up to the possibility of a civil legal action.

Colleges, universities and other learning providers may be vulnerable to the extent that office holders and those responsible for compliance must not knowingly facilitate the commercial abuse of copyright protected work.

Further information on how copyright law is enforced when somebody uses a work without permission is available on the Intellectual Property Office website.

• Download our copyright training for university lecturers
• ​Intellectual Property Office - UK government
• CREATe - the Research Councils UK (RCUK) Centre for Copyright and New Business Models in the Creative Economy
• The intellectual asset management guide helps education institutions to protect intellectual assets created by staff and students
• Watch our video summarising the changes to copyright made in June 2014
• Guidance on using orphan works is available on the Intellectual Property Office website
• Learn about teaching and learning materials freely available online in our  open educational resources guide
• The Society of Authors Ltd protects the rights and furthers the interests of writers.