Understanding Fair Dealing

When it comes to using copyright protected material, one of the most important concepts in English copyright law is fair dealing.

Fair dealing is a legal standard that determines whether certain uses of a copyright protected work are allowed under specific exceptions.

It is not a general right like the US fair use doctrine. Instead, it applies to some, not all, of the permitted acts in English law.  Here is some more information on the permitted acts under English law.

What is Fair Dealing?

Fair dealing is a restriction that applies to certain exceptions in the Copyright, Designs and Patents Act 1988 (CDPA).

To use a copyright protected work under a fair dealing exception, the use must be “fair.” This typically means:

• The portion of the work used is proportionate to the purpose;
• The use doesn’t compete with the original work or negatively affect its market; and
• The purpose is genuine, such as for criticism, news reporting, or research.

This test of fairness is narrower than the broader fair use doctrine in US law, which has more flexibility in allowing transformative works for public benefit.

Permitted Acts That Require Fair Dealing

Fair dealing applies to several key permitted acts under English law:

Quotations, Criticism, and Review

If you’re quoting or using a copyright protected work for the purpose of criticism or review, you must ensure that the use is fair. For example, quoting short passages from a book in a critical essay is allowed, but copying an entire chapter would likely be seen as excessive and unfair. The work must also be attributed to the original creator.

News Reporting

Journalists can use copyright protected material to report current events, but they must do so fairly. For instance, using brief excerpts from a press conference or showing a short clip from a newsworthy video would be acceptable, but using large portions of copyright protected material without due attribution could violate fair dealing.

Parody, Caricature, and Pastiche

Creating a parody or satire of a copyright protected work is allowed, but it must comply with the fair dealing rules. This means the parody must be proportionate to its purpose and must not take more from the original work than necessary. For example, creating a parody video that uses a few seconds of a song may be fair, but using the entire song might not be.

Interestingly, these are the same permitted acts which permit commercial use of copyright protected materials. However, the potential for commercial use is counterbalanced by the requirement for fair use – if you use more than is necessary, your use competes with the original work or negatively affects the original work, it will not be deemed fair.

Permitted Acts Not Requiring Fair Dealing

While fair dealing applies to some permitted acts, there are other exceptions in the CDPA where fair dealing is not required.

These include:

Private Study and Non-Commercial Research

Copying material for private study or research doesn’t require fair dealing, as long as it is for personal or non-commercial purposes. For example, a student can make a personal copy of an academic journal article without worrying about whether the use is “fair” under this doctrine.

Educational Use

When it comes to copying works for teaching or examination purposes in schools or universities, fair dealing doesn’t apply. The focus is on whether the use is related to the educational purpose and that it stays within reasonable limits, rather than on fairness in the broader sense.

Text and Data Mining for Non-Commercial Research

Text and data mining is another exception where fair dealing isn’t required. Researchers can copy works for computational analysis without worrying about fair use as long as the research is non-commercial.

Fair dealing plays an essential role in English copyright law, but it doesn’t apply across the board. For acts like quoting, criticism, parody, and news reporting, fair dealing ensures that the use is proportionate and does not harm the rights holder’s market.

However, for non-commercial research, private study, and educational use, fair dealing is not required. Understanding when fair dealing is relevant will help ensure that your use of copyright protected material stays within legal boundaries.