Copyright exceptions have recently been brought into law as Government did not consider that copyright laws were ‘fit for the digital age’, and they wanted to find ‘a balance between the interests of rights holders, creators, consumers and users’. Copyright is the right to reproduce/copy a work, and exists as soon as the work has been created. The copyright exceptions mean that illustrators’ work may be used without permission under certain conditions for ‘quotation’, ‘parody’, private copying’ and more. Exceptions existed before, but the new or revised ones are more wide ranging.
AOI responded to the Government’s consultation on Exceptions in 2013, which preceded this legislation, saying that the proposed exceptions were likely to create uncertainty due to the lack of definitions in the proposed legislation. The exceptions may not be overridden by contract law, so a contract will not be able to prevent them, and this may cause issues for exclusive contracts if artwork is used under an exception when an illustrator has guaranteed exclusive use to their client.
The exceptions to copyright are for ‘research and private study’, ‘text and data- mining’, ‘education and teaching’, ‘archiving and preservation’, ‘public administration’, ‘personal copies for private use’, ‘caricature, parody and pastiche’, ‘quotation’ and to permit ‘accessible formats for disabled people’.
Certain exceptions will 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. Questions to ask are: how would a fair-minded and honest person have dealt with the work? 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.
Non-commercial research and private study
The public will be allowed to copy limited extracts of works when the use is non-commercial research or private study, but they must be genuinely studying.
Parody, caricature and pastiche
This exception to copyright permits people to use limited amounts of copyright material without the owner’s permission for the purpose of parody, caricature or pastiche. So a cartoonist could reference an artwork or illustration for a caricature; an artist may use small fragments from a range of films to compose a larger pastiche artwork.
This exception only permits use for the purposes of caricature, parody, or pastiche to the extent that it is fair dealing. This would preclude use of the whole work.
AOI had argued that parody has long been used for artistic expression in the UK and we do not believe that an exception for this needs to be introduced.
This extends the previous exception, which allowed for use of quotations and extracts without permission only for the purpose of ‘criticism or review’, to now cover all types of fair quotation. Sufficient acknowledgement of the quotation must be given and the extent of the quotation should be ‘no more than is required by the specific purpose for which it is used’.
‘Quotation’ of an image was never satisfactorily addressed by the Intellectual Property Office. How can an artwork be ‘quoted’? A ‘quote’ of an illustration could be interpreted as an element of the work rather than the whole of the work. Use of a part of a work could possibly be an infringement of the illustrator’s moral right of integrity if they felt that use to be derogatory. See also the British Copyright Council’s comments on this exception.
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 (i.e. in a newspaper, online or on the TV) is allowed for any type of copyright work other than a photograph. An acknowledgment is required.
Reproducing a work will be allowed for illustrating a point, for a non commercial purpose. The uses should not undermine the sales of teaching materials.
Performing, playing or showing copyright works in a school, university or other educational establishment for educational purposes will be allowed – if the audience is limited to teachers, pupils and others directly connected with the activities of the establishment.
Recording a TV programme or radio broadcast for non-commercial educational purposes in an educational establishment will be allowed, provided there is no existing licensing scheme already in place. Generally a licence will be required from the Educational Recording Agency
The making of 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 (who currently share this income with DACS for visual artists)
Personal copying for private use
The personal copying exception permits the making of copies of media (CDs, ebooks, etc.) legitimately bought, for private purposes such as format shifting or backup without infringing copyright. For example the exception would allow the copying of content that has been bought on a CD onto an individual’s mp3 player, provided it is for private use.
It will be unlawful to make copies for anyone else or to make a copy of something not already owned or acquired illegally, without the copyright owner’s permission.
Personal copies can be made to any device that an individual owns, or a personal online storage medium, such as a private cloud. However, it is unlawful to give other people access to the copies made, including, for example, allowing access to personal cloud storage.
Helping disabled people
There are two exceptions to copyright for the benefit of disabled people. These exceptions cover physical or mental impairments which prevents a person from accessing copyright protected materials.
The first exception allows for making a copy of a lawfully obtained copyright work if the format is one that helps disabled people access the material.
The second exception permits educational establishments and charity organisations to make accessible format-copies of protected works on behalf of disabled people. Examples of both could be making braille versions of printed materials, or adding subtitles. This exception does not apply if commercially available copies are available.
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. This should not affect the visual arts.
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.
Intellectual Property Office have issued guidance notes on the copyright exceptions here
Illustration by Juliet Harris