Copyright Law of The United Kingdom - Fair Dealing and Other Exceptions

Fair Dealing and Other Exceptions

UK copyright law has a set of exceptions to copyright known as fair dealing. Database right has a similar set of exceptions. Fair dealing is much more restricted than the American concept of fair use. It only applies in tightly defined situations, and outside those situations it is no defence at all against a lawsuit for copyright (or database right) infringement.

s29.—(1) Fair dealing with a literary, dramatic, musical, etc, work, for the purpose of research for a non-commercial purpose, does not infringe any copyright in the work, provided it is accompanied by a sufficient acknowledgement of the source.

s30.—(1) Fair dealing with a work for the purpose of criticism or review, of that or another work, or of a performance of a work, does not infringe copyright in the work, provided it is accompanied by a sufficient acknowledgement, and provided the work has actually been made available to the public.

Copyright fair dealing with a literary, dramatic, musical or artistic work is most often encountered in the context of research or private study. Under the 1988 Act, it was originally the case that any research use was fair dealing. However, in 2003, the 1988 Act was amended to exclude commercial use from the definition of fair dealing. Fair dealing for research should be accompanied by acknowledgement if this is possible. Fair dealing with the typographical arrangement of a work for the use in research or private study is also explicitly allowed.

Database right fair dealing applies for the use of databases which have been made available to the public. If a person is a lawful user of a database, fair dealing is allowed for the extraction of substantial parts of a database, if the substantial part is extracted for teaching or research, not for commercial use, and provided the source of the material is acknowledged.

Copyright in a database is not infringed if a person with the legal right to use part or all of a database does things necessary to use or access the contents of the database. Such permitted acts, which would otherwise infringe copyright, are allowed in spite of any licence agreement that purports to restrict such acts. Any terms of that type are null and void under UK law. Fair dealing for the purposes of private study or non-commercial research also does not infringe copyright in a database.

With computer programs, fair dealing is explicitly excluded for decompilation or copying during decompilation. However, decompilation is allowed if it is to gain information vital to creating an independent program to interact with the decompiled program, provided that the information obtained by decompilation is not used for any other purpose. The observation of programs to determine their functions and the ideas underlying them is explicitly allowed while performing the normal functions of a program, such as loading and running it. As with database use, any terms which purport to restrict this sort of activity are null and void. Backup copies of computer programs are allowed if these are necessary for the lawful use of a computer program, and again restrictive licence terms are null and void.

For a long time, the legal position of services such as Internet caches was dubious under British law, with such copies technically being infringing. However, an amendment explicitly allows temporary copies of literary works, other than computer programs and databases; dramatic works; artistic works; musical works; typographical arrangements; films or sound recordings; provided that such temporary copies are necessary for a technical process, are transient or incidental, and only exist for the purpose of transmitting a work across a network between third parties, or only exist for a lawful use of the work. That amendment eliminates the awkward position of the caching services of Internet service providers. It is in a similar vein to an exception for the incidental inclusion of a copyright work in an artistic work, sound recording or film. However, deliberate inclusion of a copyright work negates the exception.

Beyond non-commercial research, private study, and incidental copying, another common exception to copyright is for criticism, review, or news reporting. Fair dealing for the purposes of criticism or review only applies with a sufficient acknowledgement, and provided the work being criticised or reviewed has been made available to the public. For news reporting fair dealing does not extend to photographs, and an acknowledgement is only required where reasons of practicality do not rule this out.

Visually impaired and blind people were granted an exception with the passing of the Copyright (Visually Impaired Persons) Act 2002. Where a lawful copy of a literary, dramatic, musical or artistic work, or a published edition is possessed by a visually impaired person, and the lawful copy of the work is not accessible to the visually impaired person, copies of the work can be made such that the copies are accessible to the visually impaired person. However, the making of an accessible copy of a database is not allowed if copyright in a database will be infringed, and musical works cannot be performed to make them accessible. The accessible copy must be accompanied by an acknowledgement and must carry a statement that it was made under the authority of the Copyright (Visually Impaired Persons) Act 2002's amendments to the 1988 Act. Furthermore, if accessible copies are available commercially in a form suitable for the person who the accessible copy would be made for, then the exception does not apply.

The final major exception, that the general population commonly runs into, is that of recording broadcasts for time shifting. This was brought about by the rise of the video recorder in the early 1980s. The exception only applies to copies made for private and domestic use, not to copies made for re-sale.

Educational establishments, libraries and archives have many exceptions that are applicable only to them, which enable them to do their work. However, most people do not have to worry about these exceptions in everyday life.