Fair Use / Fair Dealing
EU, UK and US provide for Fair Usage / Fair Dealing practices to cover educational and research use, along with some coverage for incidental inclusion. This also covers the use for criticism, review and News Coverage.
Under US law, provision is made for Fair Usage (17 U.S.C, 2009, §107) using four measures –
- The Purpose being Nonprofit and educational,
- Nature to the original work,
- How much is being used,
- The effect upon the potential market.
These four measures are of primary use within a courtroom. Since all copyright is defined as ’original expression’, all copyright works by default are different and the copyright covers each one differently. This means that in any given use, a legal decision needs to be made – which would take up time and resources (Crews 2001 p.6).
A number of guidelines have been issued to clarify these measures, but as Crews (2001 p.29) explains, they represent what the copyright owners are willing to tolerate, and are not admissible by law. Since challenging any legal ruling is beyond the resources of most educators wishing to use Fair Usage, educators are encouraged to play safe. Many scholars are required to seek copyright holders’ permission to criticize their work. This is due to a lack of confidence about copyright knowledge (Herman 2010).
The E.U. law provides for the provision of exceptions in the public interest for the purpose of education and fair use (THE EUROPEAN PARLIAMENT AND COUNCIL 2001 para.14,42). Education is the clearest area of Fair Usage within UK Law. While there are strict limitations, the basic guidance is that any work has to be used for non–commercial purposes and be fully acknowledged (U.K.C.S. 2010; Gowers & Great Britain. 2006 p.14). The CRRR allows for storage of digital files for education purposes to be used on site only (Great Britain 2003). However, as circumvention is an infringement of copyright, it has yet to be seen how many methods can be employed to capture obscure works.
Cases of Fair Dealing in Film Making would apply only to factual production. Using footage for news coverage means not having to attribute the work, as it would need to be in Documentary. In both US and UK Law, incidental use is when copyright work appears accidentally – for example if a copyright song is played in the background during filming that has little bearing on the work being created (Great Britain 1988 para.31).
Using footage or sound for purposes of criticism or review are also acceptable. Under U.K law this material would need to be fully acknowledged, can only be used alongside said criticism or review, shown to the public and not using more than is necessary for the review (U.K.C.S. 2010a).
However, if the meanings of the work are transformed by their use, UK and US law may differ. US Law, due to its basis in free speech, allows for the transformative use of work under fair use (Hobbs et al. 2010). So if the work has new meaning by its use, it is covered. UK Law would class this as Derivative work, and thus it would become a Copyright infringement (U.K.C.S. 2007). Gowers asked for exception to copyright for caricature, parody or pastiche (Gowers & Great Britain. 2006 pp.6, R12), presumably to aid in harmonisation of global laws.
The DEA makes online infringement a bigger issue through the threat of disconnection. Establishments will need to be more careful about straight violations (file sharing & copying) as well as exceptions (fair usage in videos, incidental inclusion, background music). However, it is not clear what specific provisions need to be made until the first Ofcom consultation has completed (Yealds & McLoughlan n.d.).
Traditionally, education have been able to hide potential infringements. However, with increased use of digital domain to make work available, both as teaching materials and marketing, everything traditionally kept on site now has a potential global reach. Under the DEA, if any action taken under Fair Dealing is questioned, it will be classed as a copyright infringement, and the burden of proof will be on the establishment.