Fair Dealing

'Fair Dealing' for 'Private Study' is a useful 'defence' against 'copyright infringement' in a limited number of situations for schools: but it doesn't cover all types of media or all the learning situations that are common in the extended classroom of today.

 fair dealing

'Fair dealing' applies to three 'permitted acts' listed in the CPDA (the UK Copyright Act). They are:

  1. 'Non-Commercial Research and Private (individual) Study' - meant for education and the one we're interested in - which covers books, etc. but does NOT cover sound recordings and films.
  2. 'Criticism or Review' - meant for reviewers, writers, etc. covers all types of media, and requries that the work is published.
  3. 'News Reporting' - meant for journalists and which specifically excludes 'photographs'.

 

PRIVATE STUDY

 'Fair dealing' applies to education including schools but also to use out of school such as hobbies or learning at home and to everyone whatever age they are. 

 'Fair dealing' is permitted for copying a small section of a work - not for copying the whole or major parts of it. There is no percentage or quantitive measure - but it is meant to be fair to the copyright owner.

 'Fair dealing' requires that “sufficient acknowledgement” is provided and a general school policy of citing the title, author, date and source by both pupils and teachers would be a good starting point. The acknowledgement should, if possible, be physically near to the image, quotation or whatever has been used.

'Fair dealing' should not prejudice the moral rights of the creator.

 'Fair dealing' does not permit multiple copies to be made or allow onward distribution. Most schools are able, for instance, to make photocopies, not because of 'fair dealing' but because they have a CLA licence in place.

 'Fair Dealing' doesn't cover copying bits form music, audio or film.

 'Fair Dealing' does not permit 'commercial' use.

 'Fair dealing' doesn't cover the use of copies of in-copyright materials without 'permissions' in technologies such as Interactive Whiteboards (IWB) or VLE.

'Fair Dealing' does not cover images found through an image search engine.

'Fair dealing' permits students to paint a 'copy' of a painting or photograph or teachers to write a poem onto a whiteboard or flip chart - but not copy a file into an IWB.

'Fair Dealing' means that the user - you - deal with copyright materials 'fairly' - not that copyright is suspended or that it doesn't matter because you're in school.

 'Fair dealing' is then, only part of the story. You have to add on the Education Exceptions to get the full picture.

 

HOW MUCH CAN YOU COPY?

The amount being copied must be considered fair: i.e. not a whole book or article - you have to select short pieces, particular bits, quotations, etc. It may also mean not the golden nuggets that makes the work distinctive and therefore 'exploitable' by the copyright owner.

The term "substanial part" is used in the CDPA but is not defined. It doesn't just refer to using large portions of a work; a key quotation from a research paper or play; an iconic part of a painting or sequence from a film although quantitatively small can be 'substantial' or defining parts of the works they are taken from; e.g.

  • the Mona Lisa's smile
  • "E=mc2"
  • "To be or not to be..."
  • "You dirty rat ..."

The use of a small, though defining part, from a work in copyright without permissions could infringe its copyright.

The CLA provide guidance on 'how much can I copy" in terms of its Education Licence for books, etc.

 

A FEW OTHER 'FAIR USE' RELATED THINGS ...

Temporary and back-up copies
 
A number of ammendments were added to the CDPA act in 2003 to deal with computers and digital technology including:

  • 'Temporary copies' that are made 'automatically' as your computer or the network it is part of accesses resources. 'Temporary copies' are about the copies made during the 'transmission' process and are not about storage and re-distribution.
  • It is not an infringement of copyright to make a back up copy of software (even if the terms and conditions of the licence say you can't!) However, back up copies are to avoid loss of the software not a means for further distrubution.

Incidental Inclusion
 'Fair Dealing' allows for incidental inclusion. If you are making a film and you include a shot with copyright works in the background or record music issuing from say a shop that is called incidental inclusion. If, however, the copyright work becomes a focus of attention and is made part of the narrative - a character sings along to a radio - that may require the permission, in that instance of the song's owners.

Photography in public places
 It is permissable to take photographs in public spaces - though there are other laws, regulations and social responsibilities that have to be taken account over. See Section 4, Good Practice.
 It is not an infringement to copy (to photograph for instance) copyright works that are in a public space - modern sculptures in a park for instance. In the USA, however, copyright of sculpture does not provide this right.

Visual Impariment
 Copyright is not infringed by copies or transformations made to support those with visual imparment.

Public Administration
 Copyright is not infringed in any material when it is used in legal proceedings or for the public good (which doesn't cover learning)

 

ASSESSING WHETHER IT'S 'FAIR DEALING' 

 There no definitive tick list but the following general guides are useful to keep in  mind. Begining with the assumption that the work is in copyright:

  • Is your use for learning? - private study, education or instruction?
  • Have you identified the author and distributor?
  • Is the work in copyright?
  • What does the copyright say?
  • Are you using fair amounts of the work?
  • Have you provided sufficient acknowledgements?
  • Are you making an impact on the owner's commercial interests?
  • Are you making a bad impact on the owner's moral rights?
  • Have you checked the exceptions?


 If you haven't got permission and it's not clear if it fits an 'exception' then you should request permission to use it.

 And after that if you want to distribute the work to a class or a group then the 'exceptions' and 'fair dealing' probably don't cover it.

  • Are you making multiple copies?
  • Are you publishing or distributing the work?
  • Have you checked the blanket licences that the school has in place?
  • What did the copyright say?
  • Do you need permisssions?

 

'FAIR DEALING' & 'EDUCATION EXCEPTIONS'

As well as 'fair dealing' schools can also work within the 'Exceptions' listed in the Copyright Act. They also have permission for copying through the 'education blanket licences'

 'Exceptions' -  There are a number of 'education exceptions' which are in addition to 'fair dealing' and provide opportunities for pupils and teachers to use in-copyright materials - but in a limited way and for specific situations.   Read them here.

 'Blanket licences' such as those from CLA (photocopying and scanning) and ERA (recording broadcasts) build on 'fair dealing' and the 'exceptions' to permit schools to copy materials and time shift broadcasts for use with groups of pupils. If a school has a liecnce in place then it is the rules of the licence that have to be followed rather than 'fair dealing' or the 'exceptions'. Read about licences in Section 2 - Licensing.

 

OTHER COUNTRIES: 'Fair Dealing' and 'Fair Use'.

Fair dealing applies to the UK and is not the same as 'fair use' which applies in the USA. In the era of print the differences between the two did not matter a great deal to teachers and pupils but with the global reach of the Internet confusion between the two has become easy with, perhaps, unintended consequences arising. For instance on Wikipedia 'fair use' is often part of the rationale used for making images available – however as Wkipedia itself points out, “Please be aware that depending on local laws, re-use of this content may be prohibited or restricted in your jurisdiction.”

flags of countries using fair dealing and fair use

Countries such as Canada, Australia, New Zealand, Singapore, India, South Africa, Hong Kong and Ireland as well as the UK make use of 'fair dealing'. However, each country has, while using the principles of 'fair dealing', defined it differently both in law and in practice. 

Some other countries, though not all, have made allowances for 'education' and 'learning' in their copyright legislation without using the terms 'fair dealing' or 'fair use'  

The doctrine of ‘fair use’ in the USA uses four measures which are ‘weighed’ individually and then aggregated to ascertain whether the ‘use’ is fair or not. US ‘fair use’ includes permission for teachers to make multiple copies something that in the UK is covered by a separate, paid-for licence not by ‘fair dealing’. 'Fair use' also includes the idea of transformation - are you doing something creative with what you have copied?   Because there is a single framework applying to all types of work the frame work of Fair Use and the tests it requries for each element provide a ready-made tool to help teach about copyright 'easier'. The EFF ‘Teaching Copyright’ resource has a section demonstrating for teachers how the doctrine works in practice. 
 EFF Teaching Copyright http://www.teachingcopyright.org/
 

 The main point to bear in mind is that although the Internet makes it easy to access materials made available under fair use those rights don’t necessarily transfer to the user in the UK.  ‘Fair dealing’ and ‘fair use’ are not interchangeable.

 There is also a lot of material discussing the issues of copyright in the digital age on the WWW - videos, 'powerpoints' and websites - that is based on the USA ‘fair use’ rules and which doesn’t, therefore, directly apply to the situation in the UK, without, at least, some amendment.

 The resources section provides links to websites supporting schools with the issue of copyright from USA, Australia, New Zealand, Hong Kong,  Germany, Sweden and South Africa. See Section 4, Good Practice, Resources from Other Countries