Fair Dealing Exceptions in UK Copyright Law

Fair Dealing - UK - Copyright Law(Photo credits: PunkJr)

Fair dealing is one of the permitted uses in UK Copyright Law that allow a person to carry out certain acts that would have otherwise been considered as an infringement if it wasn’t for the exceptions of fair dealing. The fair dealing exceptions are found in Sections 29 and 30 of the CDPA 1998.

In the UK, there are three fair dealing exceptions provided by the CDPA:

  1. Fair dealing for the purpose of research or private study. (Section 29(1))
  2. Fair dealing for the purpose of criticism or review. (Section 30(1))
  3. Fair dealing for the purpose of reporting current events. (Section 30(2))

It must be noted that the fair dealing exceptions in the UK are very specific exceptions that relate only to the fair use of copyright works ONLY for the specific purposes explicitly mentioned in the CDPA. Unlike the US, where the fair use exception is general exception which the court can hold as a defence for the use of the copyright for ANY purpose as long as the use is fair. The same concept does not exist in UK law as fair dealing only applies to the specific purposes mentioned (Bently). There are obviously other exceptions for other purposes that do not involve the fair dealing concept. These will be discussed in future posts.

The purposes mentioned earlier can operate as a defence for copyright infringement only in circumstances where the copying was fair. The court has established that this is a question of degree and impression. A number of factors may be taken into consideration depending on the facts of the case and the work in question. Such factors include whether or not the work is published or unpublished, how the work was obtained, the amount copied, the use made of the work, the movies for this copying, the consequences to the copying, whether or not the same purpose could be achieved through other methods, and whether or not the original author was acknowledged.

In the case of Hubbard v Vospar [1972] 2 QB 84, Lord Denning said:

“It is impossible to define what is fair dealing. It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be a fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression. As with fair comment in the law of libel, so with fair dealing in the law of copyright. The tribunal of fact must decide.”

There are also additional requirements for each purpose. For fair dealing for the purpose of research or private study, the purpose must be non-commercial research or private study.  The term ‘private study’ is defined in Section 178 and it doesn’t include studying that involves a direct or indirect commercial purpose. The defence only applies when the work in question is literary, dramatic, musical, or artistic. It also applies to typographical formats of published works. The exception does not apply to broadcasts, sound recordings or film. The defence will also only apply where there is sufficient acknowledgment.

Fair dealing for the purpose of criticism or review can only be used as a successful exception is the copying was made in relation to a work that is published in the sense that it was previously made available to the public. The section of the work copied must be directly relevant to the review. The case of Time Warner Entertainment Ltd v Channel 4 Television Corporation Plc illustrated that this test is not very onerous. The case involved the use of extracts from a film amounting to 12 minutes or 8% of the film in a 30 minute show. The court held that there is no required format for the program to be held as one relating to a review, that it can extent to ideas in the work, and its social and moral consequences. (Another case is Pro Sieban Media A.G. v Carlton U.K. Television Ltd).

The defence recognizes the value of criticism in society and acknowledges the fact that a person needs to copy some of the work to critique it. This defence also prevents authors from using copyright to control the reviews of their work and what parts of the work may or may not be used in the review. (Bently)

The final fair dealing defence is fair dealing for the purpose of reporting current events. This defence can be used with any work,  except photographs, as long as sufficient acknowledgment is made. No acknowledgment is required for sound recording, film, or broadcast when this would be impossible or impractical. In the case of Newspaper Licensing Agency Ltd v Marks & Spencer plc (1999), Lightman J stated that the this defence aims to achieve a balance between the protection of the rights of authors and the wider public interest which includes free speech, he consequently took the view that reporting of current events was a wide exception of indefinite scope that should be interpreted liberally (Murdie, Intellectual Property Law, page 67). {However, in this actual case, the redistribution of photocopied snippets of newspapers went beyond the exception}.


Copyright Exceptions

Copyright Exceptions
Just the same way the grant of copyright is justified as a form of reward, incentive, and a natural right of those who create original works. The public has the right for a number of different copyright exceptions which allow a person to copy protected works without acquiring the owner of the copyright work without infringing copyright.

The scope and extent of these exceptions vary. Bently and Sherman state that this is a reflection of the variety of purposes which these exceptions serve.

Some exceptions to copyright are meant to promote and encourage the creation of new original works, especially where copying is not identical and is transformative.

Other exceptions are established to solve possible market failures that could arise in situations where the use is too nominal leading the cost of any transaction to establish an agreement between the copyright owner and the person wishing to use the work uneconomical. This can be seen in the exceptions related to subtitling (s74 CDPA) and recording of broadcast by educational institutions (s35 CDPA).

Copyright exceptions are also needed to protect other non-copyright public interests such as privacy (e.g. private study (s29)) and freedom of expression (e.g. criticism and review).

They are also used to prevent monopolies of intellectual works from being abused. (e.g. decompilation of computer programs s50B and retransmission of cable programs s73).

These exceptions are necessary for preserving material of cultural value (e.g. exceptions relating to folksongs s61 and archiving exceptions s75).

Finally, some exceptions encourages collecting licenses. (e.g. compulsory licensing of lending of works s66).


Introduction to Copyright

Copyright(Image credits: PungoM)

Copyright is a right granted by the state for creators of original qualifying works to prevent others from carrying out certain activities in relation to these works. Copyright does not protect the idea behind created works, but the expression of that idea in the work.

In the United Kingdom Copyright is regulated by the Copyright, Designs and Patents Act 1988. In Oman, copyright is regulated by the Copyright Law 65/2008. The UK and Oman are both members of the Berne Convention, which grants requires members to grant copyright protection automatically upon the creation of the work without requiring the author to fulfill any formalities such as registration or deposit. Almost all countries in the world are members of the Berne Convention. Any work created in any of these members or by a national of any of these members will have his work protected in all other member states.

This means that ANY thing you create, like writing a blog post or taking a photograph using your mobile phone is protected by copyright. The period for copyright protection for most works extends for the life of the author plus 70 years after his death.

Copyright is NOT grant the author an absolute monopoly over the use of copyright work. It only regulates a number of activities related to the work, in the UK, these include copying (whether in whole or in substantial amount), issuing copies, performing in public, broadcasting, making adaptations (including translation), and renting out certain works such as computer programs, films, and sound recordings. Carrying out any of the activities cannot be legitimately done without acquiring the conset of the copyright owner. Though originally meant to be an exhaustive list of activities, as we consume today most of our media electornically, any use of digital works requires creating a copy of the work temporary or permenantly on the computer to process and consume that work. However, the law provides an exception for using digital media to allow users to copy works on their computer as long as they do it to be able to carry out the intended use of the copyright work.

A further limitation to the control of the author of his work is imposed through a number of limitations for permitted uses provided for in the law. In the UK these include fair dealing for purposes of research and private study; and fair dealing for the purposes of criticism, review, and news reporting (provided that sufficient acknowledgement of the work is made); incidental inclusion of the work in others; activities done for instruction or examination; the creation of anthologies for educational use; playing, showing or performing in an educational establishment; recording of broadcasts by educational establishments; reprographic copying that does not exceed 1% of the work; copying by libraries and archives for purposes of preservation;  copying for purposes of public administration (e.g. by courts); and a number of lawful uses of computer programs and databases.

The existence of copyright law is justified on a number of ethical and economic grounds. Many believe that ethically an author of any work has a natural right or a human right over the product of his labour. Economically, it is a believed that the grant of this protection operates an incentive which is capable of driving people to create more. It is also essential to have copyright to protect the investment made in the creation of works that couldn’t be funded if it wasn’t for the ability to have these works exclusively exhausted through the protection of copyright (competitors easily copy-market failure?). It is also believed that it is fair to reward authors for the effort they expended in creating a work and then giving it to the public.