Copyright for Solent Staff

Teaching

Although universities charge tuition fees, the link between that charge and any copying is remote. Furthermore, many of the copyright exceptions would be useless (for universities) if the normal teaching activities of a university were considered commercial. Overall, it is reasonable to assume that teaching in a university is non-commercial. 

For more detail on this point, see section 6.8.4 of HUDSON, E., 2022. Updated Copyright Guidance for Using Films, Audiovisual Works and Images in Online Teaching: Beyond the Covid Pandemic

Research

British Library (BL) and Copyright Licensing Authority (CLA) guidance is that the following examples would not count as commercial activity:

• R&D in educational establishments which is not related to any commercial venture.
• Individuals’ own private research or study, unrelated to any commercial venture.
• Research on a genuinely pro-bono basis.
• Research done for a publication for which you will not receive royalties.
• Research done for a conference for which you do not receive a fee.

The BL and CLA have indicated that the following examples would count as commercial copying:

• Research relevant to research and development (R&D) in a commercial company.
• Market research or competitor intelligence in all organisations.
• Searching for legislation and regulations for a commercial company.
• Research relevant to R&D where results will be passed to a commercial company for commercial use (except where covered by the HE licence).
• Work done by an information broker for clients.
• Research for a conference or publication for which you would expect to receive payment or royalties.

The BL/CLA interpretation in this last point is open to question, however; compare Bently et al. (2022, p. 250): "if a person is ... researching a topic in the hope of publishing a book for which they might receive substantial royalties, we think that the commercial benefit is too remote for it to be said that the use is for a 'commercial purpose', even indirectly." [BENTLY, L. et al., 2022, Intellectual property law. 6th ed. Oxford: OUP.]

Fair Dealing is a legal term used to establish whether a use of a copyright material is lawful or whether it infringes copyright. Fair dealing can apply to written works, but also to dramatic, musical, artistic, or typographical works.

There is no statutory definition of fair dealing, instead each individual use has to be looked at within the specific circumstances. The UK Intellectual Property Office (UK IPO) states, "the question to be asked is: how would a fair-minded and honest person have dealt with the work."

There are several possible factors in determining whether a dealing is fair. The amount copied and the impact on the market for the original work are often cited as the most important factors. But consider also the fuller summary below, which is adapted from pages 245-9 of BENTLY, L. et al., 2022, Intellectual property law. 6th ed. Oxford: OUP.

• What is the nature of the work?
  • Using unpublished (or not widely available) material is less likely to be fair.
• Is the amount copied reasonable and proportionate to the purpose? 
  • The less of a work you copy, the more likely it is that your copying will be considered fair dealing. There is no clearly defined limit, and it may be defensible to use whole works at times, particularly when the work itself is short.
  • Quality can matter just as much as quantity. Copying just the goals from a football match could  be considered copying a more substantial amount than a copying a longer, uneventful clip.
• Has proper use been made of the work, or has it just been reproduced?
  • While in some cases it could be fair simply to reproduce a work without comment or analysis, a defence under certain exceptions (e.g., for criticism, review, or quotation) is more likely to succeed if the use is accompanied by some comment.
• Does copying the work affect the market for the original work?
  • If your copy of a work acts as a substitute for it and competes with the copyright owner's exploitation of the work, e.g., it means you, your students, or the Library do not need to buy more copies, then it is unlikely to be considered fair dealing.
• How was the work obtained?
  • If a work has been obtained illegitimately, its use is less likely to be fair. 
• What are the motives for using the work?
  • A benevolent motive, perhaps including education, is more likely to be considered fair than an attempt to make a profit.
• Could the purpose have been achieved by different means?
  • If it were reasonable for the University to get access to the work legitimately, then copying is less likely to be considered fair.
  • If an alternative work without copyright issues could have been substituted for the work copied, then the copying is less likely to be fair.

Bently et al. (2022, p. 247) stress that "the relative importance of each of these factors will vary according to the case in hand," and so falling down in one of the above areas (e.g., if the work you copy has not been made available to the public) does not automatically exclude the possibility of your use being fair. 

Sufficient acknowledgement is defined in section 178 of the legislation as identifying the work "by its title or other description and identifying the author unless (a) in the case of published work, it is published anonymously; (b) in the case of unpublished work, it is not possible for a person to ascertain the identity of the author by reasonable inquiry." For formally published work, the academic referencing that you would do anyway should suffice, but a full academic reference is not required to meet the criterion of sufficient acknowledgement. We recommend that you include:

• the creator's name
• the title of the work
• enough extra information to identify the work easily; a unique ID if it is available
• enough extra information to locate the work easily; a URL if the resource is on the web

An acknowledgement is required, even if the work and creator can be easily identified from the copied section (e.g., there is a header on the copied page), as part of its purpose is to acknowledge the creator's claim to the work.

Note that if you are using a work under the author's permission or a Creative Commons license, then a precise form of attribution may be required. See our guidance for students on Creative Commons Licenses.