Understanding Copyright and Fair Use

Written by Cassine Bering | August 2, 2023


When it comes to copyright, the law tries to strike a balance between copyright protection and the public’s interest in accessing and using creative works for various purposes. English law recognises the concept of “fair use”, which allows limited use of copyrighted material without obtaining permission from the copyright owner.

What is Fair Use?

In English law, the concept of fair use is more accurately termed “fair dealing.” Fair dealing allows individuals to use copyrighted material for specific purposes, provided such use is considered fair, reasonable, and falls within the permissible acts defined by law. Unlike some other jurisdictions, such as the United States, English law provides a list of specific acts that are considered fair dealing.

Permissible Acts Under Fair Dealing

1. Non-Commercial Research and Private Study: This includes things like quoting a passage from a book for research purposes or making a copy of a journal article for personal study. If you are relying on this exception, your use of the material must be for non-commercial purposes and you must sufficiently acknowledge the copyright owners, where practicably possible.

2. Criticism and Review: Copyright materials can be used to genuinely illustrate a review or criticism. Examples include quoting from a film or book or including excerpts in a review article or critical video. However, this exception only applies to the use of copyright materials that were already available to the public. You cannot rely on this exception if you wish to use copyright works which have not yet been made available to the public or were made available to the public through unauthorised means.

3. News Reporting: Using copyrighted materials in a news report to inform the public about current events (those of interest to the public) is a permitted act (however, be aware this does not apply to the use of copyright photographs). When relying on this exception, sufficient acknowledgement of the copyright work and owners must be made unless (with regards to use of a sound recording, film or broadcast) crediting the work and owners is impossible.

4. Quotation: Quotation of a copyright work is permitted for any purpose, provided the copyright work is already public, the amount quoted is no more than is required for the chosen purpose and the owners of the copyright works are sufficiently acknowledged, unless it is impossible to do so. This is the broadest of the fair use acts but be aware, a judge will still weigh up your use in reference to the public interest and the interests of the copyright holder. See ‘Guidelines for Content Creators and Users’ below for more.

5. Education: Using copyright materials in an educational establishment for educational purposes is permitted. We find this exception to be largely misunderstood and receive lots of enquiries from private tutors and instructors hoping they qualify for this exception. Unfortunately, this exception is meant for educational establishments only, meaning establishments formally recognised by the English education system such as schools and universities. It is also important to note that the exception only applies when an educational establishment is using material for education. For example, schools are permitted to use copyright protected scripts for school plays provided the play is just performed to students or in class. However, if the school wanted to open the play to the public, inviting parents and the public to watch, the use would no longer fall into this exception. Likewise, if the school wanted to sell tickets or pursue a commercial purpose when using the materials, such use would not fall into this exception. This is why schools are required to purchase licences for scripts when they put on plays for the public.

6. Parody, Satire, and Pastiche: This means creating a parody of a copyrighted song, video or other works or using elements of copyrighted works to create a humorous or critical commentary. For this exception to apply, the parody must evoke an existing work while being noticeably different from it and humorous. An audience should come away thinking the parody is noticeably different from the original. If the works are closely copied and too familiar to the original this exception will not apply. When it comes to parodies, you need not acknowledge the original work nor its owners.

Guidelines for Content Creators and Users

The fair use exceptions are not designed to fit every situation. They are specific for a reason and if your use doesn’t feel like it fits effortlessly into one of the above acts, then it probably doesn’t.

You must err on the side of caution when relying on the fair use exceptions. Fair use does not offer an all-encompassing exemption from copyright law. Every matter is judged on a case by case basis and there is no way of knowing what a judge will decide unless and until the matter is tried at court.

The courts will consider the following:

· Whether you used the copyright materials for a competitive gain and not truly for one of the acts/reasons permitted above. If so, your use is unlikely to be permitted.

· Whether you have used an excessive amount of copyright material. You should only use the amount necessary to achieve the purpose. Avoid using substantial portions that could adversely affect the potential market for the original work.

· Whether your use of the copyright material could prejudice the author. The fair use exceptions only exist because they are considered to be in the public interest, and so courts are careful to weigh up the public interest in the use against the rights of the copyright holder.

Fair dealing offers some flexibility for content creators and users to use copyrighted material under specific circumstances. However, it has limitations. Even if your use is fair, a copyright holder can still cause you difficulties in pre-action conduct and pursue you if they are unhappy with your use of their works. Also, third party platforms may refuse to publish your work if they are unconvinced by your fair use claims.

If you are unsure your use falls into the fair use exceptions, consider approaching the copyright holder for a licence to use the work. We can assist with drafting offer letters to copyright holders as well as drafting or reviewing the eventual copyright licences.

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