For the last week librarians worldwide have been celebrating Fair Use, or, as we call it in the UK, Fair Dealing. So, what’s it all about? Fair Dealing is a term used to describe some limited activities that are allowed without infringing copyright. Although this may sound rather boring, it’s actually vital, as it defines how academics, researchers, critics, anyone who needs to use resources that are still in copyright, can do so without breaking the law. As Sarah Jeong beautifully expresses it on the Fair Use Week 2015 blog: “Fair Use is the part of copyright that gives us room to breathe, to move, to actually get things done. Things like criticism, parody, art–and yes, even legal scholarship.”
Justice Story, who is often cited as the creator of Fair Dealing, gave judgement on a case in 1841, Folsom v Marsh, in which excerpts from George Washington‘s letters were used in a biography of the former President. The correspondence had previously been published with the permission of the Washington estate. At the time copyright was less concerned with intellectual rights, and more with property rights, i.e. the right to print and sell a particular work. Story was forced to rule that the defendant had indeed infringed the copyright of the Washington estate, but commented that he had “come to this conclusion, not without some regret, that it may interfere, in some measure, with the very meritorious labors of the defendants, in their great undertaking of a series of works adapted to school libraries.” For more information on the case go to the fascinating pages on Primary Sources on Copyright.
This judgement helped move the concept of copyright away from being purely the right to print a specific text and towards the control of the market value of an intellectual work. If you think about it, this is still at the core of the purpose of copyright protection today. However, what happens when you need to quote from a particular work, to critique it or to study it in depth? This is where Fair Dealing comes into play.
It allows the reader to copy a small amount of a work (typically, in the UK, 5%, or a single chapter or article) as long as it is for private study purposes and for non-commercial use, or to quote from it. There are also exceptions for readers with disabilities, for example, if you are visually impaired you might need to have a work scanned to enlarge it in order to read it. Proviso to this would be that you would need to check that there wasn’t already a publication available that was suitable for your needs, and would have to own, or have access to, a copy of the work.
Sometimes the 5% rule of thumb can be quite confusing: whilst it’s not defined anywhere, the Copyright Service has some sensible advice on this under their Common Questions.
Two examples (both of which I’ve come across as a librarian):
Q. “I want to photocopy a few bars of a hymn which is still in copyright.”
A. In practice this will probably be impossible. Your average hymn will only be a page or two long so any attempt to copy 5% would mean the copying of the complete hymn (and possibly another one too), which would breach copyright.
Q. I want to copy music from an anthology of songs.
A. Music anthologies often cause confusion about what can be legitimately copied under Fair Dealing. You’ve got to remember that the Fair Dealing rule applies to each item that’s in copyright, so Fair Dealing doesn’t mean that in an anthology of 100 songs, you can copy 5 of them. Each song will be copyrighted separately, and the Fair Dealing principle covers each one individually. As with the hymn, this may mean that it is therefore impossible to copy part of the work without copying the whole and therefore infringing copyright.
There is some good news though – if you need to research a section in a contemporary opera, you can do so, as long as you stick to the 5% rule and make use of the item for private study and non-commercially. You can quote from a work as part of an article criticising it. And thanks to Fair Dealing, we can search on Google and save articles to be read later. In fact without Fair Dealing, I wouldn’t have been able to research this post, or tell you about the wonders of Fair Use. Happy Fair Use week!