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.