What is fair dealing?
A term used in UK copyright laws, fair dealing is designed to allow others lawful use or reproduction of someone else’s work without the need to get permission from the copyright owner or creator, and without breaching their interest. Fair practice and – in the US – fair use are also terms used to describe the same thing.
“A fundamental strength of the UK’s copyright framework is the principle of ‘fair dealing’,” explains Rebecca Deegan, Director of Policy & Public Affairs at the British Copyright Council. “The US has adopted a more general approach to exceptions, namely ‘fair use’. Fair use is more subjective than fair dealing meaning copyright infringement claims are more open to interpretation. This makes it more likely that cases will have to be considered individually and through litigation. This is problematic because the cost of litigation reduces access to justice for individual right holders, many of whom are sole traders and SMEs.”
What does the fair dealing law apply to?
Fair dealing laws can apply to:
- Written works
- Dramatic works
- Artistic works
- Literary works
- Typographical works
- Musical works, although it does not cover the copyright for printed music
Copyright gives creators control of how their material can be used and, in the UK, is applied automatically.
The international right covers both broadcast and public performance, as well as copying, adapting, renting, issuing and lending copies of work to the public. In most cases, the creator has the right to be identified as the author and to oppose derogatory treatment and distortions of his or her work.
What uses are considered legally “fair”?
The fair dealing law, governed by Sections 29 and 30 of the Copyright Designs and Patents Act 1998, outlines three situations where fair dealing is a legitimate defence:
- When used for research or private study
- When used for the purpose of criticism or quotation
- When used to report current events (with the exception of photographs)
7 examples of what is allowable
- Research and private study: quoting parts of a published work in pursuit of research or private study is allowed, as long as it is done without commercial intent and the source of the material is acknowledged. The copy must remain private and cannot be copied for distribution to others.
- Instruction or examination: using parts of copyright material for the use of instruction or examination is allowable so long as the copying is carried out by a student or instructor – a teacher or lecturer, for example. The instruction mustn’t be for commercial interest and the copy should not be easily duplicated. The source of material must be acknowledged.
- Review or criticism: quoting work for use in criticism or review is allowed . The amount of content quoted must be appropriate to the length and purpose of the review and the source of the original material must be acknowledged.
- News reports: quoting material to report on current events is allowed. The source must be acknowledged and the amount of quoted material should be no more than strictly necessary. Use of photographs is not permitted.
- Incidental inclusion: sometimes work is unintentionally included in the making of another creative work. Incidental inclusion of a sound recording, film, broadcast or artistic work would not be treated as an infringement. For example, it would be considered fair dealing if a work of art was on a wall in the background of a film, so long as it was inadvertent and not done intentionally.
- Visually impaired accessibility: as long as a suitable version isn’t already available, you are allowed to make a copy to create a suitably accessible version.
- Parody or Pastiche: some exceptions to the fair dealing law are allowable if using a copyright work to create a parody or pastiche of it without permission. While IPO (Intellectual Property Office) guidance rules that it must be “fair and proportionate”, you should treat this with some caution as there is little guidance or case law rulings to support what constitutes fair dealing where parody or pastiche are concerned.
How to ensure you stay within the bounds of fair dealing laws
If you’re not sure that the way you wish to use copyright material is covered by the fair dealing law, always check directly with the publisher or owner of the copyright.
Should you need to seek permission you should make your request in writing and include the following specifics:
- Clearly state the material you wish to use
- Be clear about the exact content you wish to duplicate
- Include how many copies you would like to make
- Explain how the copies will be used and who they will be supplied to
Always ensure you get permission in writing. It’s also important to keep a record of all correspondence and conditions of use for your own reference, and protection.
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