Intellectual property – guidance

Exceptions to copyright

Details of the exceptions to copyright that allow limited use of copyright works without the permission of the copyright owner.

Overview

As well as owning copyright works yourself, you may wish to make use of someone else’s copyright protected works. There are certain very specific situations where you may be permitted to do so without seeking permission from the owner. These can be found in the copyright sections of the Copyright, Designs and Patents Act 1988 (as amended).

Non-commercial research and private study

You are allowed to copy limited extracts of works when the use is non-commercial research or private study, but you must be genuinely studying (like you would if you were taking a college course). Such use is only permitted when it is ‘fair dealing’ and copying the whole work would not generally be considered fair dealing.

The purpose of this exception is to allow students and researchers to make limited copies of all types of copyright works for non-commercial research or private study. In assessing whether your use of the work is permitted or not you must assess if there is any financial impact on the copyright owner because of your use. Where the impact is not significant, the use may be acceptable.

If your use is for non-commercial research you must ensure that the work you reproduce is supported by a sufficient acknowledgment.

Text and data mining for non-commercial research

Text and data mining is the use of automated analytical techniques to analyse text and data for patterns, trends and other useful information. Text and data mining usually requires copying of the work to be analysed.

An exception to copyright exists which allows researchers to make copies of any copyright material for the purpose of computational analysis if they already have the right to read the work (that is, they have ‘lawful access’ to the work). This exception only permits the making of copies for the purpose of text and data mining for non-commercial research. Researchers will still have to buy subscriptions to access material; this could be from many sources including academic publishers.

Publishers and content providers will be able to apply reasonable measures to maintain their network security or stability but these measures should not prevent or unreasonably restrict researcher’s ability to text and data mine. Contract terms that stop researchers making copies to carry out text and data mining will be unenforceable.

Criticism, review and reporting current events

Fair dealing for criticism, review or quotation is allowed for any type of copyright work. Fair dealing with a work for the purpose of reporting current events is allowed for any type of copyright work other than a photograph. In each of these cases, a sufficient acknowledgment will be required.

As stated, a photograph cannot be reproduced for the purpose of reporting current events. The intention of the law is to prevent newspapers or magazines reproducing photographs for reporting current events which have appeared in competitor’s publications.

Teaching

Several exceptions allow copyright works to be used for educational purposes, such as:

  • the copying of works in any medium as long as the use is solely to illustrate a point, it is not done for commercial purposes, it is accompanied by a sufficient acknowledgement, and the use is fair dealing. This means minor uses, such as displaying a few lines of poetry on an interactive whiteboard, are permitted, but uses which would undermine sales of teaching materials are not
  • performing, playing or showing copyright works in a school, university or other educational establishment for educational purposes. However, it only applies if the audience is limited to teachers, pupils and others directly connected with the activities of the establishment. It will not generally apply if parents are in the audience. Examples of this are showing a video for English or drama lessons and the teaching of music. It is unlikely to include the playing of a video during a wet playtime purely to amuse the children
  • Recording a TV programme or radio broadcast for non-commercial educational purposes in an educational establishment, provided there is no licensing scheme in place. Generally a licence will be required from the Educational Recording Agency)
  • making copies by using a photocopier, or similar device on behalf of an educational establishment for the purpose of non-commercial instruction, provided that there is no licensing scheme in place. Generally a licence will be required from the Copyright Licensing Agency

Helping disabled people

There are 2 exceptions to copyright for the benefit of disabled people. These exceptions cover you if you have a physical or mental impairment which prevents you from accessing copyright protected materials.

One exception allows you, or someone acting on your behalf, to make a copy of a lawfully obtained copyright work if you make it in a format that helps you access the material. For example, if you buy a book from a shop then make a Braille copy to help with a visual impairment then you are not infringing the copyright in the book.

You are entitled to make an accessible copy, or have someone else make one for you, if:

  • you lawfully own, or have the right to use a copy of the work (for example, you own it or have borrowed it from a library), but the work is inaccessible because of a physical or mental impairment
  • a copy that would be accessible to you is not commercially available

The second exception permits educational establishments and charity organisations to make accessible format-copies of protected works on behalf of disabled people. The exception permits acts such as:

  • making braille, audio or large-print copies of books, newspapers or magazines for visually-impaired people
  • adding audio-description to films or broadcasts for visually-impaired people
  • making sub-titled films or broadcasts for deaf or hard of hearing people
  • making accessible copies of books, newspapers or magazines for dyslexic people

However, this exception does not apply when suitable accessible copies are commercially available.

Please note that no-one can make a profit out of helping you make an accessible copy, but they are able to charge a fee covering any they costs incur in making and supplying such a copy.

Time-shifting

A recording of a broadcast can be made in domestic premises for private and domestic use to enable it to be viewed or listened to at a more convenient time.

The making of a recording of a broadcast for purposes other than to time-shift a programme for you or your family is likely to be illegal.

Personal copying for private use

The personal copying exception permits you to make copies of media (CDs, ebooks etc) you have bought, for private purposes such as format shifting or backup without infringing copyright. For example the exception would allow you to copy content that you have bought on a CD onto your MP3 player, provided it is for your own private use.

However, it is unlawful to make copies for friends or family, or to make a copy of something you do not own or have acquired illegally, without the copyright owner’s permission. So you are not able to copy CDs borrowed from friends, or to copy videos illegally downloaded from file-sharing websites.

You are permitted to make personal copies to any device that you own, or a personal online storage medium, such as a private cloud. However, it is unlawful to give other people access to the copies you have made, including, for example, by allowing a friend to access your personal cloud storage.

Parody, caricature and pastiche

There is an exception to copyright that permits people to use limited amounts of copyright material without the owner’s permission for the purpose of parody, caricature or pastiche.

For example a comedian may use a few lines from a film or song for a parody sketch; a cartoonist may reference a well known artwork or illustration for a caricature; an artist may use small fragments from a range of films to compose a larger pastiche artwork.

It is important to understand, however, that this exception only permits use for the purposes of caricature, parody, or pastiche to the extent that it is fair dealing.

Certain permitted uses of orphan works

Orphan works are creative works or performances - like a diary, photograph, film or piece of music - for which one or more of the right holders is either unknown or cannot be found.

An exception to copyright allows cultural and heritage organisations (publicly accessible libraries, educational establishments museums and archives, film and audio heritage institutions and public service broadcasting organisations) that hold certain orphans within their collection, to digitise and place them on their website for non commercial use. This does not include the use of standalone artistic works such as a photograph.

Take this eligibility questionnaire to find out if you qualify to use the exception.

Sufficient acknowledgment

In relation to certain exceptions, if you are making use of that exception to copy someone else’s work it is necessary for you to sufficiently acknowledge their work. For example, where you have copied all or a substantial part of a work for the purposes of criticism or review, or where the use was for the purposes of news reporting.

However such acknowledgment is not required where it is impossible for reasons of practicality.

Fair dealing

Certain exceptions only apply if the use of the work is a ‘fair dealing’. For example, the exceptions relating to research and private study, criticism or review, or news reporting.

‘Fair dealing’ is a legal term used to establish whether a use of copyright material is lawful or whether it infringes copyright. There is no statutory definition of fair dealing - it will always be a matter of fact, degree and impression in each case. The question to be asked is: how would a fair-minded and honest person have dealt with the work?

Factors that have been identified by the courts as relevant in determining whether a particular dealing 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? Was it necessary to use the amount that was taken? Usually only part of a work may be used

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

Technological protection measures

It is important to be aware that media, such as DVDs and e-books, are often protected by Technological Protection Measures (TPMs) (also known as copy protection measures or DRM) which prevent unauthorised access or copying.

TPMs can play an important role in enabling copyright owners to offer content to consumers in different ways, as well as preventing piracy. EU and UK law protects the right of copyright owners to use TPMs to protect their works, and circumvention of such technology is illegal.

Further guidance

Further guidance on copyright exceptions, including changes to the law made in 2014, is available.