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Understanding Fair Use

In terms of copyright the default assumption is that all content belongs to its original creator during their lifetime, unless the original creator actively chooses to assign it to someone else. Specific rules apply after the creator’s death. Hence, generally speaking, anyone who wishes to use someone else’s content has to get their permission. There are, however, a few exceptions, which are generally referred to as “fair use”. It is difficult to give hard-and-fast rules about what is and is not fair use, but here are some useful tips and guidelines.

Printed music has its own set of rules

While the information in this article applies to a broad range of content, rather than just written text, there are a distinct set of rules for printed music. These can be downloaded from the website of the Music Publishers’ Association.

Copying works for educational purposes

In this context, education can basically be subdivided into formal courses of instruction and/or examinations offered by recognised authorities such as schools or industry bodies and the broader field of private study in general.

Courses and examinations

To qualify for the fair-use exemption, the courses and examinations must be offered on a non-profit basis and the copying must be undertaken by the instructor or the students themselves. It is forbidden to use reprographics and the source of the material must be acknowledged.

Private study and research

This may or may not be directly related to a course or examination. In this situation it is permitted to use reprographics, but the student must generally do their own copying. If need be, however, a representative can make a single copy on their behalf. While these rules cover a broad range of content, historically the emphasis has been on written text, hence the Society of Authors has issued guidance on what is considered acceptable in this situation. These guidelines permit the use of:

“One article from an individual issue of a journal (even if the article is the entire journal issue)
Up to 10% of a short book (up to 200 pages long)
One chapter or up to 5% – whichever is greater – of a book or similar publication
One poem or short story of up to 10 pages
A report of one case in law reports”

It is, however, worth noting that these guidelines were published in 1965, long before the internet went mainstream, prompting the emergence of a new generation of digital publications and digital authors who may or may not be members of the Society of Authors. It is, for example, hard to see how they would be applied to blogs. The lack of litigation in this area suggests that it is, for now at least, a moot point, but could be worth bearing in mind.

Fair use in published articles

The rules in this area are legally divided into two categories: quotation, critique or review and reporting of current news events. In the wonderful world of blogs, the distinction may be somewhat blurred, so care may need to be taken.

In the context of quotation, critique or review, the Society of Authors has issued the following guidelines:

The work must be publicly available
The source of the work must be acknowledged
The quoted material must be supplemented by topical discussion or assessment
The extent of material quoted is considered an acceptable amount for the purpose of review

Again, however, it’s questionable what percentage of digital authors are represented by the Society of Authors and in this situation that is probably a more significant question than it is in the context of private research and study, since published articles may be monetized and hence become a commercial activity, which can open up various cans of worms.

The guidelines for reporting of current news events come from Section 30(2), (3) of the Copyright, Designs and Patents Act 1988 and specifically exclude photographs (in addition to the exception for printed music, which we mentioned earlier). In short, the guidelines state that the amount of material used must be in proportion to the needs of the news story and that the source must be sufficiently acknowledged.

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