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What it is

Ordinarily, copyrighted works cannot be used without the copyright owner’s permission. Copyright exceptions apply to allow someone, other than the copyright owner, to use copyrighted work in a way that would otherwise be prohibited.

Put another way: in some circumstances people can use your work without your permission.

When it applies

Copyright exceptions apply in very specific and limited circumstances (see key legal considerations below). Broadly, these exceptions allow for fair use in often non-commercial circumstances e.g. education and private research.

The exceptions apply automatically and there is no need for a person relying on an exception to notify the copyright owner that they are doing so.

Who/what it applies to

Any person can rely on the general copyright exceptions, although some exceptions relate to specific sectors (e.g. education) or roles (e.g. librarians).

Copyright exceptions only apply to the use of the copyrighted work, they do not entitle a third party to claim attribution of the work. That is, they apply as exceptions to a copyright owner’s economic, not moral, rights.

Core principles

1. Copyright exceptions are designed to allow reasonable use of copyrighted works, without unduly limiting the rights of a copyright owner.
2. If the use of a copyrighted work falls within an exception, the copyright in that work is not infringed and the copyright owner cannot take action to limit or prevent that use.
3. Exceptions apply automatically and cannot be contracted out of.
4. Most exceptions have conditions that must be met in order to rely on them including a fair dealing requirement.
5. The exceptions can apply to the use of all or part of the work. In the event of dispute, the court will consider whether the use of the work was reasonable and appropriate in the circumstances. For example, use of the whole work will unlikely be considered as fair if only part was needed to realise the purpose of the exception.

Why it matters (risks/opportunities)

Risks

Copyright exceptions:

• require monitoring of the use of copyrighted work to ensure that any use falls fully within the exception, and to evidence a breach if not
• may result in an inadvertent infringement if someone relying on an exception does not limit their use to the boundaries of the exception e.g. fair dealing
• may result in a copyright owner thinking their copyright has been infringed (triggering costly legal action) when in fact the use falls within an exception

Opportunities

Copyright exceptions: 

• allow work to be distributed in settings that do not undermine artistic integrity or economic opportunity e.g. education and private research
• provide space for comment, discussion and engagement with the work e.g. through news reporting
• facilitate collaboration and commercial possibilities as work reaches a wider, and potentially more diverse, audience

Key legal considerations/elements

The key copyright exceptions are: 

Non-commercial research and study

A person can make a copy of work (or parts of it) for genuine non-commercial research and study. This exception is subject to a fair dealing requirement e.g. copying an entire book would likely fall foul of this exception. Any work that is reproduced must be duly accredited.

Text and data mining for non-commercial research

Provided a person has lawful access to material (e.g. they already own, or have a subscription to, it) they can make copies of that material to enable automated text and data analysis. This exception only applies to non-commercial research.

Criticism, review, quotation and news reporting

Copyright is not infringed for the purpose of criticism, review, quotation or reporting provided the work has been made public and, where possible, the use is accompanied by a sufficient acknowledgment. The exception does not apply to the use of photographs for the purpose of reporting current events.

Caricature, parody or pastiche

Fair dealing with a copyrighted work is permitted for the purpose of caricature, parody or pastiche. These terms are not defined in the legislation and, pending further guidance, should be given their usual understanding.

Government guidance has defined parody as imitating ‘work for a humorous or satirical effect’, pastiche as a ‘composition made up of selections from various sources or one that imitates the style of another’, while a caricature ‘portrays its subject in a simplified or exaggerated way’.

Incidental inclusion

Copyright is not infringed if the relevant work is incidentally (unintentionally) included in an artistic work, sound recording, film or broadcast. For example, in the background of another work.

Education and teaching

Several specific exceptions exist for the use of work for non-commercial, education purposes. For example, fair dealing with a work for the sole purpose of illustrating for instruction and copying extracts on behalf of an educational establishment for the purpose of instruction.

Personal use

Individuals can make copies of their own copies of the work for private use or to make accessible copies of work they have lawful access to if they have a disability that prevents them from enjoying the work in its original format (e.g. making a braille copy for personal use).

Copies by librarians

Librarians may:

• make copyrighted work available at a dedicated terminal on the library premises
• supply a single copy of the work to other libraries
• make a copy of an item in a permanent collection to replace or preserve it
• provide single copies of published works to an individual who declares that they require the copy for the purpose of research for a non-commercial purpose

Key commercial considerations/elements

You should monitor use of your copyrighted work and seek advice if you think someone is using your work without permission (and outside of an exception).

Record evidence of any unapproved use of your work (screenshots, photographs etc) as this will be helpful in building a case should the offending use be stopped.

Collate evidence of the impact of the unauthorised use on your business. Courts have looked at issues such as lost revenue when determining whether the use of the work constituted ‘fair dealing.’

Be careful when seeking to rely on an exception – they apply in limited and specific circumstances. If you are unsure seek legal advice (or permission from the owner of the work).

FAQs

Several exceptions refer to ‘fair dealing’ – what does this mean?

Although the legislation does not define this term (it will be a matter of fact and degree in each case), the courts will determine how a ‘fair minded and honest’ person would have dealt with the work. For example, was the use reasonable and appropriate?

If the use falls within an exception does this mean that the third party can use my work for whatever they like?

No – the use must be within the limits of the exception. For example, a copyright owner can still enforce their ‘moral rights’ – for example the use of the work cannot be derogatory (e.g. prejudicial to the reputation of the copyright owner).

Can I still be compensated if use falls within an exception?

No. If the work falls within a copyright exception, and the use is within the scope of that exception e.g. fair dealing, then the use is permitted and the author is not entitled to compensation. If the use falls outside of the boundaries of the exception then your copyright may have been infringed and you might be entitled to some form of remedy.