Fair Dealing, Licenses, and Usage Moodle Book

Site: QMplus - The Online Learning Environment of Queen Mary University of London
Course: Introduction to Copyright
Book: Fair Dealing, Licenses, and Usage Moodle Book
Printed by: Guest user
Date: Tuesday, 16 August 2022, 4:27 AM

Fair Dealing

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Fair dealing is a type of exemption that allows the usage of copyrighted materials in certain circumstances. These circumstances include Educational uses, Libraries and Archives, Anthologies, performances and educational establishments recording broadcasts or copying and using extracts. This exemption is afforded by Sections 29,30 and 30A of the Copyright, Designs and Patents Act 1988 (as amended).

In order for the exemption to be applied to you, one must show that one of four situations apply:

  • The usage is for research (non-commercial) or private study (Section 178)

This encompasses all types of research or private study as long as it is non-commercial. Any research that may be used for commercial purposes in the future may also be excluded. Third party copying in situations of research assistant and researcher are covered in come circumstances.

  • For criticism or review (Section 30(1))

In order for copying to fall into this category, it must legitimately be done for criticism or review. The work copied must have been previously available to the public, and there must be an acknowledgement of the original work.

  • For the purpose of reporting current events (Section 30(2))

In order for something to be seen as a current event, the event must be contemporaneous. Older events may also fall into the category if they are still being discussed. Naturally, events regarding national importance, sports, global importance, and similar can and will into this category.

  • Parody, caricature and pastiche (Section 30A)

This category generally uses the ordinary meaning of these words to illustrate what is and isn't considered acceptable. The use need not be positive or negative as there is no stipulation on the type, however this does not exempt the individual copying from libel or slander. 

Once your usage falls into one of the above three categories, it must then be "fair".

Fairness is subjective and takes into account the entire picture when it comes to usage. This includes but is not limited to the method of acquisition, the length of time, the amount of material copied and the scale of copies made.

For example, illegally downloading a Science Fiction film, and then showing it to your colleagues or students for an end of term party/event on campus would not be fair use. This is because the film is recreational as does not fall into any of the three categories. Furthermore, it was downloaded illegally, and then broadcast to a group of individuals. Being on campus does not automatically give immunity to situations and make them for research purposes. In addition, all the individuals watching the film would be partaking in secondary infringement.

Computer programs are also included in fair dealing situations as they are considered a literary work. Therefore, having a backup copy of a program for the lawful use of the program owner is considered fair dealing – this is why it’s not considered copying or infringing when individuals have back up drives of their computers or documents.

Fair dealings in essence, is a sort of “get out of jail free card”. Providing you follow the rules, you are able to utilise or consume copyright protected materials.  The burden of proof to show that any usage of copyright protected materials as "fair" under the Statute is on the user.



Licenses

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A license is an express permission that allows an individual to do or perform an activity. A driver’s license allows you to drive your car on the streets, a liquor license allows you to sell alcohol. Licenses for copyrighted material work in the same way. The university has several licenses that allows you to legally copy extracts of content and protected works under certain circumstances and restrictions. These are accessible from QMplus or the Library Database so you can freely use works from, for example, Hein Online and Westlaw which are legal databases, Box of Broadcasts which is a library of broadcasts that you can use and Canopy which is a streaming service. Use from then onward should be done according to fair dealing as described by the license. 

Licenses that the university has are

  • CLA License
https://www.cla.co.uk/do-you-need-a-licence

The Copyright Licensing Agency is one of the main licenses you have access to and that you can use to check if you have permission to use a piece of copyright protected material. On the website, there is handy “check permissions” tool which allows you to search by title, author, or ISBN/ISSN number as to what you can do with the materials. There are also user guides and best practice guides that can help inform you on the best way to interact with these materials.

As a rule, it is recommended that for every book, journal etc. that you plan on using, you run it through the CLA check permissions tool so that you can see what your options are regarding the content.

  •  ERA License 
http://era.org.uk/the-licence

The ERA licensing scheme allows for educational establishments to use recordings that have already been broadcast within an educational setting. It is important to know that the ERA licence does not cover YouTube, but allows access and downloads from several On Demand streaming sites such as BBC iPlayer, All4, and ITV player. Supplying recordings in either hard copy form or by electronic means to distance learning students or other students  based outside the UK is not permitted under the ERA Licence.

  •  NLA License
 http://www.nlamediaaccess.com/default.aspx?tabId=40

The NLA deals specifically with newspapers and allows for the use of newspapers under their terms. Media covered under an NLA license includes UK newspapers and news websites.

Another type of license that you are subject to by the university is the End User License Agreement for programs (EULA), these allow you to use the computer programs that you do, in the way that you do too.

At some point in your work or studies, you may have come across the CC or Creative Commons license. Essentially, when a work has a CC license, it allows you, the user to use the work in certain ways. There are several types of CC license, these are:

  •   Attribution Only CC BY: This allows you to use, remix, change, distribute and build upon work even commercially as long as the original creator is credited.
  •  Attribution Share Alike CC BY SA: This allows you to remix, change, distribute and build upon work even commercially, providing you use the same CC BY SA license for your work and credit the original work.
  • Attribution No Derivative CC BY ND: No derivative works are allowed but, the work can be used even commercially as long as there is credit attributed to you.

There are non-commercial licenses variations for these types of licenses with all the terms exactly the same with the exception that the resulting work can only be used non-commercially. These are:

  • CC BY NC, 
  • CC BY NC SA and, 
  • CC BY NC ND respectively.

The Creative Commons licensing framework uses symbols to denote the type of license a work may have. As taken from the Creative Commons flickr stream, they are as follows:

Attribution iconAttribution means:
You let others copy, distribute, display, and perform your copyrighted work - and derivative works based upon it - but only if they give you credit.

Noncommercial icon Non-commercial means:
You let others copy, distribute, display, and perform your work - and derivative works based upon it - but for noncommercial purposes only.

No Derivative Works icon No Derivative Works means:
You let others copy, distribute, display, and perform only verbatim copies of your work, not derivative works based upon it.

Share Alike icon Share Alike means:
You allow others to distribute derivative works only under a license identical to the license that governs your work.

CC0 iconPublic Domain Dedication (CC0) means:
You, the copyright holder, waive your interest in your work and place the work as completely as possible in the public domain so others may freely exploit and use the work without restriction under copyright or database law.

Public Domain Work iconPublic Domain Work means:
Works, or aspects of copyrighted works, which copyright law does not protect. Typically, works become part of the public domain because their term of protection under copyright law expired, the owner failed to follow certain required formalities, or the works are not eligible for copyright protection.

Works can also be “all rights granted” which allows copyright holders to waive all their rights and place the work in the public domain. It is the opposite of “all rights reserved”.

With regards to computer programs, Open Source Licenses are the equivalent to CC BY SA licenses. It is important to understand and recognise that a license cannot override the law, and so any terms and conditions in the license must comply with the laws of the land of which the copyright protected material exists.

Protected Works Use

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The copyright holder has the EXCLUSIVE right to:

·         Copy the work

·         Issue copies to the public

·         Rent or lend the work to the public

·         Perform, show or play the work to the public

·         Make an adaptation or do any of the above to the adaptation

It is therefore no surprise that all of the above acts are restricted by copyright. Acts restricted by copyright are termed as an infringement if any of the above acts are done without the express permission or with a license from the copyright holder. 

So that means that copying someone else’s code and changing the values or colours, streaming a film in public, or making your own special adaptation of Shrek are all prohibited and infringing acts under UK law.

Examples of this would be:

·         Plagiarising excerpts from an article online

·         Photocopying a book from the library yourself

·         Renting/lending a dvd or book to the public yourself

·         Having a pirate radio station

It doesn’t matter whether or not the infringement is direct or indirect, the entire work or just a part of it.

Secondary infringement  is also classified as infringement under UK law. So importing any infringing materials to share with friends or colleagues is also infringement, even if you didn’t create the infringing material. Even letting someone print a pirated article or infringing journal on your printer is classified as secondary infringement.

Secondary infringement is especially important in understanding in this day and age. It is something that can sometimes catch you out when dealing with copyright protected material. This is because secondary infringement is often not seen as a direct act, and so individuals tend to not ascertain that they themselves are the infringer.

An example of this is YouTube or Vimeo, or other user generated video streaming sites. Hosting a site that allows individuals upload and distribute infringing material is secondary infringement. This is why YouTube has their Content Aware system that allows for copyright holders to flag what they believe is infringing material. Consuming this media is also infringing behaviour, even if you yourself haven’t gone through the steps of downloading and re-uploading the media.


Copyright Infringement

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What happens if I infringe the copyright of copyright holder you may ask? In a nutshell, you can be sued. The owner of the copyright is entitled to make sure that their works are not being infringed upon and are entitled to remedies under the law. These remedies are:

  •  Damages – Money 

If found to be infringing, there may be required to pay money to the owner of the work.

  •  An injunction to stop the infringement

An injunction will require the person in question to stop the infringing behaviour.

  •  The delivery of the infringing material or seizure of the infringing material

Any infringing material will be required to be surrendered or will be seized from the infringing party's possession.

You may also face criminal liability as well as civil liability if you:

  •  Make the infringing material available for sale or hire

This is similar to the fake DVDs that were prevalent in the early 2000's.

  •  Import infringing material for reasons other than private or domestic use
  • Have a business that does any of the above

When going about your work, research, duties or, conducting your studies you will no doubt encounter and interact with copyright protected works and materials. It is important that you utilise or interact with these materials in a lawful way. In order to do this, there are several stages of thought processes you can go through to ensure you are compliant with UK copyright law and the University copyright framework.

1. Did you create the work yourself?

If you didn’t, the fact is that you need some type of permission before using it. If it is a piece you wrote that is unpublished and providing it is cited correctly. Remember that while you may not be violating your own copyright, you could possibly be self-plagiarising according to the university’s guidelines.

If you did then just go ahead and use it.

2. If you are not the author or owner, you need to check if you need a license to use it. Providing ‘credit’ for photographs, images etc is sometimes not enough depending on the license.

3. If your usage is in an educational non-commercial situation for illustrative purposes then you usually are okay to use the work unless it is explicitly denied by the copyright owner.