Copyright is an intellectual property right that arises automatically. Its purpose is to protect original works by preventing others from copying a work without permission. There are several exceptions to copyright protection in the UK and one important exception is known as ‘fair dealing’.
In this article, our copyright solicitors provide an overview of ‘fair dealing’. They explain the factors to consider when assessing whether your proposed use of a copyright work could be regarded as fair dealing and discuss how much of a copyright work you can use. They explore the extent to which businesses can rely on the fair dealing exception and detail the consequences of getting it wrong.
Contents:
- What types of uses fall under fair dealing?
- What is the difference between fair use and fair dealing?
- What factors determine whether a use is fair?
- Are there differences in fair dealing for individuals and businesses?
- How much material can be used under fair dealing?
- Can fair dealing be used as a defence in a copyright dispute?
- What happens if fair dealing is used incorrectly?
- Summary
What types of uses fall under fair dealing?
There are several uses of a copyright work that may fall under the remit of fair dealing. They include:
Research and private study
The fair dealing exception for research and private study applies to all copyright works.
To rely on fair dealing, your use of the copyright work must be for non-commercial purposes, and you must acknowledge the source of the material where possible. ‘Commercial purposes’ is construed fairly widely and includes any research intended for a purpose that has some commercial value.
For private study, the exception permits acts such as a student taking a single copy of a work to study or a literature student copying sections of a novel in an assignment. If the student subsequently disseminated that assignment to others, for example, on the intranet, such use is unlikely to constitute fair dealing.
Criticism or review
The fair dealing exception relating to criticism or review applies to all copyright works, provided they have already been made available to the public. For the exception to apply, you must acknowledge the source of the material where possible.
To rely on this exception, your use of the copyright work must be to illustrate a criticism or review. For example, it might cover the use by an online film critic of extracts of the film they are reviewing.
Reporting current events
The fair dealing exception for reporting current events applies to all copyright works other than photographs. Using someone else’s photograph in a news report will constitute copyright infringement.
The exception allows the media to report on current events without worrying about infringing copyright. As with other types of fair dealing, you must acknowledge the source of the material where possible, unless you are reporting the events through a sound recording, film or broadcast. In these situations, an acknowledgement is not required where giving one would be impossible or impractical.
The term ‘current events’ can cover events that happened some time ago, provided they are of continuing interest to the general public.
Quotation
The fair dealing exception relating to quotation applies to all copyright works, provided they have already been made available to the public. To fall within the scope of this exception, the amount of the original work quoted must be no more than is required to achieve your purpose, and you must acknowledge the source of the material wherever possible.
Parody, caricature, pastiche
The fair dealing exception relating to parody, caricature, and pastiche applies to all copyright works.
‘Parody’ is where you evoke someone else’s work for humour or mockery. Imitation is not a parody.
‘Pastiche’ is where you imitate someone else’s style or work or create a medley of other people’s works. ‘Pastiche’ can cover a wide variety of works, including collages, compilations, and fan fiction. The exception does not mean any form of borrowing, reproduction, or imitation is allowed.
‘Caricature’ is when you exaggerate the characteristics of an original work, such as a well-known painting, for humour or mockery.
The fair dealing exception relating to parody, caricature, and pastiche does not affect an author’s moral rights. Moral rights refer to the non-economic rights of the creator of a work and include a right to object to derogatory treatment. If the copyright owner objects to your use of their work on the grounds of derogatory treatment, they may take legal action against you.
Your use of a copyright work will only fall under any of the fair dealing exceptions listed above if it is fair. We explain what factors determine whether a use is fair later in this guide.
What is the difference between fair use and fair dealing?
You should not confuse fair dealing under UK law with the concept of ‘fair use’ applied in other countries, such as the US. Fair dealing in the UK applies only to the specific circumstances we have listed above. By contrast, the fair use doctrine can be applied to any type of use; the key issue is whether that use was fair.
Muddling up UK and US law when determining whether your use falls within the fair dealing exception can be disastrous. If you are in any doubt, you should seek legal advice from copyright lawyers.
What factors determine whether a use is fair?
Whether the use of a copyright work could be deemed fair depends on the circumstances and the act you intend to undertake. For example, what constitutes fair dealing in connection with private study may amount to infringement in the context of reporting current events.
Having said that, we can glean some pointers from what the Courts have decided in past cases. When determining whether your proposed use could be deemed fair, you should consider the following factors:
- The extent to which your proposed use might compete with the copyright owner’s commercial exploitation of their work. This is of paramount importance since if your actions impact the copyright owner’s ability to exploit their work, they are unlikely to be deemed fair.
- Has the copyright work been published? If not, any proposed use may not qualify as fair dealing, especially if you obtained the work in breach of confidence.
- How much of the copyright work you intend to use, and its importance. Using excessive amounts of the original work, or even using small amounts regularly, may render your use unfair. Your use must be proportionate and relevant.
Knowing whether a proposed use of a copyright work falls under fair dealing or constitutes infringement is incredibly difficult. If you intend to rely on a permitted act as justification for using a copyright work, you should take advice from expert copyright solicitors first.
Are there differences in fair dealing for individuals and businesses?
Some of the acts permitted under fair dealing, such as research and private study, apply only to non-commercial uses. The key factor here is the nature of the act itself, not the identity of the person or organisation undertaking it. There may be circumstances in which a business’s use of copyright material could fall within the remit of research for non-commercial purposes and so constitute fair dealing.
In reality, though, a business may be hard pressed to rely on this exception. The Courts construe ‘commercial purposes’ widely, and they include anything with commercial value, so the business would need to convince a Court that it had carried out research of no commercial worth.
Some other permitted acts apply to any use of a copyright work, whether commercial or non-commercial. They include parodies, quotations, reviews, and news reporting. For example, using extracts from a book for the purposes of a review on a monetised YouTube channel may be permitted, provided your use is fair. The use by commercial organisations of copyright material for news reporting is permitted in some situations.
You must proceed with caution when planning to rely on a permitted use of copyright material, particularly when acting in the course of business. Even if the permitted use in question applies to commercial use, your use must still be fair. The requirement that your use must not compete with the copyright owner’s rights can be particularly tricky to fulfil in the context of commercial use that results in a profit. Seeking legal advice before proceeding with your proposed plan of action can save you considerable time and money in the future.
How much material can be used under fair dealing?
There are no hard and fast rules apply when it comes to how much material will constitute fair dealing. You must not use an excessive amount of the original work, limiting your use to what is absolutely necessary to achieve your purpose. You must avoid using so much that your use affects the original’s potential market and impacts the creator’s ability to commercially exploit their work.
Can fair dealing be used as a defence in a copyright dispute?
Yes, you can use fair dealing as a defence to allegations of copyright infringement. If the copyright owner objects to your use, they should send a letter of claim to you detailing the nature of your alleged infringement before embarking on Court proceedings. If you receive a letter of this nature, you should seek guidance from copyright solicitors like ours. Your solicitor will prepare a robust reply, pointing out that your use is a permitted act and constitutes fair dealing.
Bear in mind that the copyright owner may disagree with your analysis, and there are no guarantees that the defence will succeed. To ensure your use falls within the fair dealing exception, you should take legal advice on your position before proceeding.
What happens if fair dealing is used incorrectly?
Using fair dealing incorrectly exposes you to allegations of copyright infringement, to which you may have little defence as you will have used the copyright work without permission.
If you are found liable for copyright infringement, you will likely have to pay damages to the copyright owner, cover their legal fees, and deliver up or destroy any leftover copies of the infringing material. In addition, the copyright owner may seek an injunction against you. An injunction is a form of Court Order prohibiting the named person or organisation from carrying out specific acts. Injunctions are common remedies in copyright infringement cases, and they are often endorsed with a penal notice placing those to which they apply at risk of imprisonment if they don’t comply with its terms. Given the severity of these potential remedies, the importance of checking with copyright solicitors that your planned use constitutes fair dealing cannot be overstated.
Summary
Fair dealing enables individuals and businesses to use copyright material for specific purposes. It can be incredibly useful to those involved in areas such as research, news reporting, and reviews, who would otherwise be at constant risk of infringement proceedings. Fair dealing does not provide a blanket defence to copyright infringement allegations. Any use must fulfil the applicable legal requirements and, vitally, must be fair. You must err on the side of caution when planning to use copyright material on the basis that it constitutes fair use. Getting it wrong can be incredibly costly, and in the absence of clear guidance on what will and will not fall within the exception, expert legal advice is essential.
