Fair dealing

What is 'fair dealing'?

‘Fair dealing’ is a legal term that refers to the conditions under which the use of third party material may be permissible via various copyright exceptions and determines whether use of copyright material is lawful or not.

There is no statutory definition of ‘fair dealing’, however, factors that have been identified by the courts as relevant in assessing whether a particular use with a work is fair include:

  • Does using the work affect the market for the original work? If a use of a work acts as a substitute for it, causing the owner to lose revenue, then it is not likely to be fair.
  • Is the amount of the work taken reasonable and appropriate?
  • Is it necessary to use the amount that was taken?
  • Is the use accompanied by an acknowledgement of the source?

The relative importance of any one factor will vary according to the case in hand and the type of use in question.

Why is this relevant to me?

‘Fair dealing’ allows the use of copyright material without the need for permission. This means that you can use extracts of third party copyright material without the need to contact the owner and possibly be required to pay a fee to use it. Here are some examples of how it might apply:

  • If you are a student, ‘fair dealing’ provides a private study exception that allows you to copy material for reference purposes;
  • If you are a researcher, ‘fair dealing’ provides a non-commercial research exception that allows you to use material for reference purposes;
  • If you are a lecturer, ‘fair dealing’ provides an ‘illustration for instruction’ exception that allows you to use material to reinforce your teaching;
  • If you are commenting on content, ‘fair dealing’ provides a ‘criticism and review’ exception that allows you to use material for these purposes;

All of these are subject to specific limitations which are outlined in more detail in the sections below.

How much can I copy?

The law is uncertain in this area as cases are rare.  The best general advice suggests that you can copy and include in your work:

  • one extract of no more than 400 words;
  • several extracts none more than 300 words and totalling not more than 800 words; or
  • up to 40 lines from a poem, not exceeding one-quarter of the whole.

This test of ‘how much’ is not solely limited to quantitative measures but is related also to the qualitative aspect of the extract.  You should consider whether the extract that you plan to use is particularly significant within the overall work (this may be a factor that would tend to weigh against use) and any potential commercial damage to the rights holder. For example, quoting the crucial sentence from a crime novel thereby revealing the central plot lines would probably never be ‘fair dealing’ as it may damage the commercial interests of the author.

How does 'fair dealing' apply to

 Private study/ non-commercial research?

In most cases, copying within the following limits can be taken as ‘fair dealing’ for the purpose of non-commercial research or private study:

  • up to one complete chapter of a book;
  • up to one whole article from a single issue of a serial publication or in a set of conference proceedings;
  • the entire report of a single case of judicial proceedings;
  • in the case of an anthology of short stories or poems, one short story or poem not exceeding ten pages in length; or
  • no more than 5% of any published edition above, whichever is the greater.

These limits also apply to content found online, so 5% of a website may be reused under ‘fair dealing’.

See also the section on examination and continuous assessment.

 Criticism and review?

This long standing exception allows the copying of material for the purposes of a critique or review- think Film 2000 or other film review TV programmes.  Users are allowed to reuse third party content to enable them to comment upon it or the underlying themes.

Care should be taken to ensure that the use of any extract is more than simply illustrative and that there is a genuine critique of the extract or of the underlying themes represented by the extract itself.  Illustrative use is not covered by this ‘fair dealing’ exception (but see the guidance on ‘illustration for instruction’ below).

However, it should be noted that one particularly important case (Time Warner vs Channel 4, 1994) suggests that the volume guidance above is too conservative. Channel 4 successfully claimed that their use in a documentary of almost twelve minutes of the film ‘A Clockwork Orange’ was permissible as ‘fair dealing’ as it was for criticism and review purposes. Their use equated to 8% of the film and was deemed to be justifiable as it was necessary and relevant to the points discussed during the documentary.

In contrast, other cases include use of a clip of a movie being limited to 30 seconds as that was the length of clip necessary to demonstrate the point being made and not the five minutes before or after which was originally used.

The message here then is to exercise caution, try to answer the questions at the top of the page objectively, and this will provide an indication of 'fairness'.

Please do contact us for further support.

 Illustration for instruction?

‘Illustration for instruction’ is a new exception that allows the use of ‘fair’ amounts of third party materials in order to reinforce teaching or to make it more compelling for students. There is no need to incorporate any element of criticism or review.

As this is a new exception, there is no case law informing us of how much can be used but the general guidance in line with 'criticism and review' applies, i.e.

  • one extract of no more than 400 words;
  • several extracts none more than 300 words and totalling not more than 800 words; or
  • up to 40 lines from a poem, not exceeding one-quarter of the whole.

This test of ‘how much’ is not solely limited to quantitative measures but is related also to the qualitative aspect of the extract.  You should consider whether the extract that you plan to use is particularly significant within the overall work (this may be a factor that would tend to weigh against use) and any potential commercial damage to the rights holder. For example, quoting the crucial sentence from a crime novel thereby revealing the central plot lines would probably never be ‘fair dealing’ as it may damage the commercial interests of the author.

Where third party materials has been used in a ‘fair’ manner it can be included in teaching materials including those uploaded to Canvas or captured via Panopto.

Images represent a difficult scenario however it is arguable that low resolution versions may be considered ‘fair dealing’ under this provision providing their use satisfies the other factors. Every case is different but provided the amount copied is reasonable and appropriate to the context then it is likely that it can be considered ‘fair dealing’.  However the use of low-res images might make the image useable for your particular context and therefore this exception would not apply and a licence would be required.

(Images are explored in more detail on our 'digital content and copyright' page.)

This 'illustration for instruction' exception is still subject to the ‘fair dealing’ tests at the top of the page, and if you need to use more than the ‘fair dealing’ amounts use see our licences section for more details about tools which will help you do this.

Two particularly important aspects of this new exception are:

  • the previous ‘examination exception’ that allowed unrestricted use of copyright material for assessment purposes has been removed. Any use of copyright material in, for example, an examination paper must now comply with the ‘fair dealing’ limits;
  • Copyright law had fallen behind developments in the use of the new technologies, and only allowed copying by hand on a blackboard by a lecturer and via pen and paper by a student. This new exception now allows for copying by electronic means, e.g. use on a white board/ projector and storing of content on the VLE, or by a student on their electronic device.

Jisc Legal offer a detailed FAQ on this new exception which explores the issues in more detail.

Please do contact us for further support.

Quotation?

Whilst still subject to the usual ‘fair dealing’ limits, this will allow the use of ‘fair’ amounts of copyright materials simply for the purposes of quotation.  This use needs to satisfy the questions posed at the top of this page, but there is no need to justify the use of a particular quote. Any quotes used should be accompanied by the usual acknowledgement and no more than is necessary is used. 

As this is a new exception, there is no case law informing us of how much can be used but the general guidance in terms of how much applies.

Where quoting from a recording or performance is used, that recording or performance must have been previously available to the public.

The right to quote from a copyright work covers all types of work - such as film, broadcasts, sound recordings and photographs - not just text.

This exception could be used where the other ‘fair dealing’ exceptions of ‘criticism and review’ and ‘illustration for instruction’ might not apply.

The same cautious approach should be taken to this new exception as with the others.

Please do contact us for further support.

Caricature, parody and pastiche?

Under this exception people will be permitted to use limited amounts of another’s material without the owner’s permission as with other 'fair dealing' exceptions. For example: a comedian may use a few lines from a film or song within a sketch for a parody; a composer may use small fragments from a range of existing musical pieces to create a larger pastiche; a cartoonist may reference a well-known public figure for a caricature.  This exception is also subject to ‘fair dealing’ limits and allows the use of extracts for the purposes of caricature, parody and pastiche. 

However exactly what is permitted is uncertain but the use of a whole work would not be permitted.

Additionally, the legislation provides no definition as to what is covered by these three concepts however, it is generally accepted that:

  • parody involves the imitation of a work for humorous or satirical effect,
  • pastiche is a musical or other composition made up of selections from various sources or one that imitates or mimics the style of another artist or period, and
  • caricature portrays its subject in a simplified or exaggerated way, often visually, and may be insulting or affectionate in nature and often serves to make a political point.

Please do contact us for further support.