Month: February 2022

Fair Use Week 2022: Day Five With Guest Expert Sandra Aya Enimil

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Our final day of the 9th Annual Fair Use Week closes with an important post by Sandra Aya Enimil from Yale University, exploring the critical relationship between fair use and equitable access. – Kyle K. Courtney

Equitable Access and Fair Use

by Sandra Aya Enimil

Working in an academic library, brings many opportunities to interact with librarians, faculty, staff, and students working on amazing research and projects that have local, national, and international impact. One of the most important elements of librarianship is making sure that there is equitable access to content for people who want to use our materials for their scholarship, study, and research. In our increasingly digital world, many institutions of higher education preemptively provide web-based materials equitably to all. Some have done so in response to consent decrees.

Consent decrees (under provisions from the Americans with Disabilities Act) compel universities to create policies and procedures, and to dedicate resources to ensure that disabled members of a campus have access that is equitable to that of non-disabled members. Beyond the web, in many instances, general accessibility to library materials is done well and seamlessly. For persons with disabilities, however, it’s often not so seamless. Access is limited to certain content and sometimes has one or more steps before material becomes accessible for their needs. There is a myriad of reasons for this.

In the United States, libraries are bound under copyright law which provides a mechanism for library operations and the ability to loan and make available purchased or acquired content. For example, U.S. copyright law allows libraries, under section 108, to provide digitized copies for research and private study. Under section 121 digitized copies of published literary and musical works for persons with disabilities.

Broadly speaking, U.S. copyright law provides academic institutions with the authority to create accessible copies of in-copyright works.  Academic librarians often partner with other parts of the institution: information technology, student/staff disability offices to provide support for persons with disabilities. While these partnerships are necessary to verify need and to fulfil accessibility requests for the person waiting to receive the material, it is an extra layer of bureaucracy, time, and effort that non-disabled persons do not have to manage. Additionally, section 121 only allows access for specific types of published content. Why does it matter how many steps a student/researcher with disabilities needs to take to eventually get access? It matter because it often means an extra layer of planning and a lack of serendipity in performing research.

How does fair use fit it into this environment? And how does fair use make access more equitable for persons with disabilities? There are compelling arguments that the fair use provision and Section 121 make it possible to create and distribute accessible materials to qualified users, and to retain and share accessible texts in secure repositories for use in serving future qualifying requests. There is also broad discretion to develop systems to support creating and distributing these texts in accordance with the law and their institutional capacity. Individual academic institutions can also create their own systems and workflow to address the needs of eligible persons.  Or academic institutions can rely on systems like HathiTrust to provide this content. Eligible researchers can use Hathi’s search feature to access millions of volumes of works that have been digitized. The researchers do have to register to receive access, but once that happens, they may search the corpus of content freely and hopefully many of those serendipitous research moments happen.

While section 121 is narrow in scope, fair use expands the type of content that may be made accessible. Fair use allows libraries to make audio-visual works, including films accessible to researchers with audio and visual disabilities by adding captions and audio description. Other works excluded from Section 121 include unpublished works, choreography, pictorial, and sculptural works. The ability to create, distribute, and retain accessible versions of these types of content also relies on fair use. Section 107 and 121 permit an essential workflow. This workflow starts with a request from a student or researcher with a disability. It involves an accommodation specific to the needs of the requestor (remediation) and delivery of an accessible version to the researcher. Finally, it ends with deposit of the remediated version in a secure repository for appropriate future use (including future remediation) in the service of other requestors with disabilities.

Someday, these barriers to persons with disabilities won’t exist and there won’t be extra steps needed to receive the same content as non-disabled folks. But we are not there yet. And while fair use alone does not solve all the issues that make equity difficult for researchers with disabilities, it does provide an expanded scholarly universe beyond narrow provisions. And, hopefully, this provides the ability to dive down a research rabbit hole and happen upon just the thing you need.

Sandra Aya Enimil (she/her) is the Copyright Librarian and Contracting Specialist at Yale University Library. At Yale, Sandra is the Chair of the License Review Team and provides consultation on licenses of all types for the Yale Library. Sandra also provides information and resources on using copyrighted materials and assists creators in protecting their own copyright. Sandra collaborates with individuals and departments within the Yale Library and across campus. Sandra is committed to diversity, equity, and inclusion (DEI) and is interested in the intersection of DEI and intellectual property. 

This blog is cross posted on the Conversations on Copyright at Yale Library Blog: https://campuspress.yale.edu/copyrightconversations/

Fair Use Week 2022: Day Four With Guest Expert Dave Hansen

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I am excited to welcome Dave Hansen to our Fair Use Week blog post series, as he examines and celebrates the functional and mundane aspects of fair use! – Kyle K. Courtney

Fair Use is Boring

by Dave Hansen

“We live in interesting times” is a statement I’d prefer to not hear again. Over the last couple of years we have faced protests, insurrections, pandemic, fires, wars and so on. And in addition to those real life problems, the law has struggled to adapt. Rules that were once thought reasonable no longer made sense. We needed flexibility that hasn’t always been there. However, one bright spot has been how copyright law has for the most part navigated these emergencies successfully, largely due to the power of fair use. 

Described as an “equitable rule of reason,”  fair use aims to  “avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Fair use, for example, is the reason teachers and librarians have felt empowered to continue helping their students learn by reading aloud to them (gasp!) online, even though strictly speaking such uses may, strictly speaking, be considered an exercise of the copyright owner’s public performance rights. It has also helped make other uses supporting teaching, learning possible, by allowing instructors to share excerpts of books, or clips of movies, with students through class websites. Those kinds of uses illustrate the elegance and speed with which fair use allows us to adapt to emergencies to keep teaching and learning, and ultimately creativity, moving forward.

Of course,  sometimes that “equitable rule of reason” means that we can have disagreements about what qualifies as fair use, especially in new circumstances. This is true with cases like with the National Emergency Library and the copyright lawsuit that it perpetuated. That lawsuit challenges whether and how libraries, like Internet Archive, can provide digital access to digitized books in times when physical analogs can’t be accessed. Reasonable minds can differ about what circumstances make that permissible, hence the lawsuit.  But even then, fair use helps us, by giving enough legal flexibility in the system to invite organizations like Internet Archive that are willing to take a risk and make the argument, and then allowing for a reasoned resolution of the issue by the courts. That’s a feature, not a bug. Without it we may foreclose all sorts of new ways of promoting learning and progress for fear of an otherwise stifling, stiff copyright system. 

But, I’m tired of emergencies. So I want to close out Fair Use Week by asking you to celebrate with me how fair use can be pretty boring, too.  Although we sometimes talk about fair use as an “exception,” in reality it’s’ not some special aberration from the norm; fair use is baked into the balance of the Copyright Act, as it is in all sorts of everyday activity. These uncelebrated, boring aspects of fair use are an important part of what makes it so powerful. “Equitable rules of reason” only really work when they match what most of us view as actually being reasonable. We use it all the time:*

  • Copy a photo for a class assignment? Fair use. 
  • Back up your mp3 collection? Fair use.
  • Record a game on TV, to watch later? Fair use. 
  • Quote an original source in your class term paper? Fair use.
  • Send a text to your mom with a funny picture from the internet? Fair use.
  • Create a meme! And share it with your boss? Fair use.
  • Forward that crazy email thread from your neighborhood listserv to the local news? Yup, fair use.  

Ok, so I might be getting suspiciously specific here, but you get the point. There are all sorts of ordinary interactions we have every day with copyrighted works, and for a large number of them, we’ve somehow navigated through the strictures of copyright law in ways that have allowed us to continue to learn, explore and even laugh, without winding up in court. Fair use is an important part of how we get there. For most of us (not me) who don’t obsess over fair use, we don’t even know we’re using it. 

So, for those of you who are tired of doom-scrolling and reacting to the emergency of the week, take a breath. Look around. And geek out about how cool this little corner of our copyright system is, to make so many aspects of modern life more reasonable, and even a little bit boring. 

* Yup, there are other good legal rationales to support some of these uses. My point isn’t that fair use is our only hope for allowing ordinary, reasonable behavior. But it sure does help.

David Hansen is the Associate University Librarian for Research, Collections & Scholarly Communications at Duke University Libraries. Before coming to Duke he was a Clinical Assistant Professor and Faculty Research Librarian at UNC School of Law. And before that, he was a fellow at UC Berkeley Law in its Digital Library Copyright Project.

Fair Use Week 2022: Day Two With Guest Expert Brandon Butler

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Day two of Fair Use Week kicks off with a critical update on a case involving software, access, and fair use. UVA’s Brandon Butler reviews the arguments, and his amicus brief, for Apple Inc. v. Corellium, now at the 11th Circuit Court of Appeals.  – Kyle K. Courtney

 

Fair Use, Unforeseen Consequences, and the Apple v. Corellium case

by Brandon Butler

Fair Use Week is a good time to celebrate one of fair use’s most important applications: addressing unforeseen copyright barriers to important cultural activity. The importance of this kind of fair use is vividly on display in a case currently in the 11th Circuit Court of Appeals: Apple v. Corellium (Docket No. 21-12835). A key issue in the case is whether Apple’s copyright in its iOS mobile operating system software can allow it to control a new use that neither Congress nor Apple foresaw: Running the software outside of an Apple device in order to more effectively study how it works.

Corellium’s technology enables security researchers to examine how iOS works, and potentially to detect flaws and weaknesses in the system, by viewing the software in an emulated hardware environment. Apple previously tried to acquire Corellium, but when the deal fell apart, Apple accused the company of copyright infringement. Apple argued that Correllium actions – hosting copies of the iOS and making them accessible to researchers – was violating Apple’s copyright. Corellium argued its use is fair, and the trial court agreed. (I summarized that opinion in these very pages in “Apple v. Corellium: Some Early Takeaways for Software Fair Use,“ as part of Fair Use Week last year.) Apple appealed that decision to the 11th Circuit Court of Appeals in Atlanta.

Last week I filed an amicus brief in support of Corellium, on behalf of the Software Preservation Network, Library Futures Institute, the American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries. (ALA, ARL, and ACRL work together on copyright issues as the Library Copyright Alliance). Last year I explained the basic issues, and the upsides of the trial court’s opinion in favor of Corellium. This year I want to take a step back and talk about how we got here and why fair use plays such an important role in the future of software preservation specifically and digital preservation generally.

As computer programs grew in cultural and economic significance during the second half of the 20th Century, policymakers grappled with whether to apply copyright to these new creations. Advocates for inclusion argued that computer programs suffered from the same basic market failure issue as traditional copyright-eligible works: they are expensive to develop but easy to copy, potentially undermining the incentive to create new works. Skeptics of copyright for software (including a young law professor named Stephen Breyer) pointed out that there are many ways to address this economic problem, and that software differs from traditional copyright subject matter in important ways.

Chief among these differences: software has an essentially “utilitarian” character. Indeed, software is a machine made of text (to use the colorful metaphor favored by critics like professors Pam Samuelson and Dennis Karjala), and 99.99% of software users never read the code that comprises the protected “literary work” for copyright purposes. What matters about software is what it does, and copyright is not designed to protect that kind of value. Congress should not apply a legal system designed for expression to a new kind of creation whose main value is behavior. Or so the critics said.

The critics lost, however, and software was fully integrated into copyright law shortly after the passage of the Copyright Act of 1976. (One reason congress’s thinking was out of sync with many experts might be that the expert panel convened to advise congress on this issue did not include a single person with more than a layperson’s knowledge of software or computers. The panel’s final report confuses issues as fundamental and consequential as the difference between source code and object code. For a detailed critique of the CONTU group and its report, see Samuelson’s seminal piece, “CONTU Revisited: The Case against Copyright Protection for Computer Programs in Machine-Readable Form,” Duke Law Journal, vol. 1984, no. 4, Duke University School of Law (1984)).

Among the many consequences of software copyright, unforeseen by its champions, is its potential chilling effect on access to other digital works. Indeed, not even the critics at the time foresaw the problem we raise in our amicus brief – that copyright-encumbered software works are necessary tools for accessing digital files. And if these tools cannot be preserved, accessed, and used without the rights holder permission, the copyright monopolies in software will have grown to include control over authentic rendering of every work that is written or read with that software. For core software works like iOS, that power would reach millions of digital works (everything created for or with an Apple touchscreen device, from notes to fine art), all inaccessible without lawful access to (the right version of) iOS.

The SPN amicus brief lays out for the Court the extremely high stakes for getting the balance right in cases like this. The software-dependent nature of all digital files means preservation and access to software is a foundational issue for cultural heritage institutions in the 21st century. Unfettered copyright would give software copyright holders unfettered power to shape access to history (and to art, and to science, and to anything created or stored digitally, which is almost everything, now).

If this outcome—a digital history held hostage by software companies for 120 years after the creation of each new version of their app—sounds absurd, it’s because it is. It certainly does not “promote the progress of Science and the useful Arts,” as the Constitution supposes all copyright should do. And it certainly is not a situation any legislator intended or foresaw when they decided to add software to the Copyright Act’s list of protected works (or, rather, to redefine “literary work” to include software code). This is where fair use comes in to save the day.

Fair use is an open-ended right: the statute defines fair use with a list of examples prefaced by “such as,” leaving the courts discretion to identify new contexts where fair use can apply. So, even though no one in 1976, or 1980, expected there would be any need for an exception to copyright to enable access and preservation of digital works with software dependencies, the law is capable of providing that exception by means of fair use. Software preservation professionals have already begun to rely on fair use and to declare their consensus views about its application through the Code of Best Practices in Fair Use for Software Preservation. Without fair use and tools like the Code, cultural heritage institutions would be in serious trouble as they struggle to develop strategies for preserving our collective digital culture and history. With fair use, copyright law has within it the power to adjust and flex to avoid absurd results, including the one sought by Apple in its suit against Corellium.

Brandon Butler is Director of Information Policy at University of Virginia.  There he focuses on intellectual property, copyright, licensing and user privacy as they are related to the acquisition, dissemination and preservation of various forms of information and cultural artifacts, and as they are related to scholarly communication. He serves as an expert consultant to UVA librarians, to groups and individuals within the University, and to national and international efforts focused on relevant questions. He was previously a Practitioner-in-Residence at the Glushko-Samuelson Intellectual Property Law Clinic at American University’s Washington College of Law. Before that, Brandon was Director of Public Policy Initiatives at ARL from 2009 to 2013.

Fair Use Week 2022: Day One With Guest Expert Kenneth D. Crews

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We are delighted to kick off the 9th Annual Fair Use Week with a guest post by the international copyright expert, Kenneth D. Crews, as he predicts the role of fair use in the U.S. Copyright Office’s new small claims court. -Kyle K. Courtney

Fair Use and Small Claims: Getting Ready for the Big Deal

by Kenneth D. Crews

An irony of fair use is that it can be patiently supportive and thoroughly demanding at the same time. It can nurture the individual spirit, and simultaneously require complex litigation strategies. In our daily pursuits, we might be comfortable clipping, pasting, mixing, adapting, and generally engaging with fair use in an enlivened quest for creativity. On the other hand, if ever we had to convince a judge of our legal position, we would become immersed in extensive research and analytical arguments.

That ambivalence of fair use may soon reveal itself with the opening of the new “small-claims court” for copyright infringements.  I and others have written generally about this new quasi-judicial Copyright Claims Board, soon to commence operations within the U.S. Copyright Office. The new Board was established with the passage of the CASE Act, enacted by Congress in late 2020 as part of an appropriations bill. It creates a distinct process for bringing and resolving “small” copyright infringement actions that may come before this new Board and the three Copyright Claims Officers who will rule in proceedings. The Officers can hear allegations of infringement, and they can act on defenses, including fair use.

The Board has authority to award damages, generally capped at $30,000 per proceeding, and the expectation is that the Board will make determinations in common matters where the total dollars at risk are not exorbitant.  The Board may hear cases about scanned and uploaded pages, or movie clips posted to personal websites and on YouTube.  Depending on the exact facts of each claimed infringement, these familiar pursuits could form an ideal context for confrontations over fair use.

Some battles will not actually occur.  A crucial element of the Case Act, intended to buffer it from constitutional challenge, is the broad authority of respondents who are hit with claims to opt out of the system, leaving the original copyright owners with the choice to file the case in the conventional federal courts – exactly the burdensome and expensive option the claimant hoped to avoid.  Opting out will likely be common.  But some cases will nonetheless proceed, bringing fair use to the fore.

Jump ahead several years: The determinations of the Copyright Claims Board are required to be publicly reported.  We might get only brief conclusions. With luck, we might see a dense public record of allegations and evidence, documents and arguments, and the Board’s explanations and rationale. However, the new law states unequivocally that the rulings are not to have any precedential value. That stipulation will do nothing to stop analyses of the Board’s track record and the use of trends and analytics in strategic planning by future parties. Whether we like it or not, in the years ahead, we will be exploring and exploiting the direction that the Copyright Claims Board has taken on the meaning and application of fair use.

The proceedings before the Board may indeed be efficient and individualistic. But the arguments and findings about fair use could easily be as demanding and complex as those found in the court system. Yet the realistic ability to make a sophisticated and persuasive legal argument may be out of balance. The claimant bringing the action could be a large entity with ample legal support, while the respondent may often be that modest user who is experimenting with remixes and fan fiction.

These heady questions about fair use will form the Board’s track record that we will analyze in the years ahead.  The trends and patterns in the Board’s rulings on fair use in the coming years will undoubtedly reveal much about the Board’s proclivities on fair use and offer guidance for future litigants before the Copyright Claims Board. In other words, early proceedings that involve fair use need to move forward with great care. The law tells us that the decisions are not precedential, but they are foundational.  Even in the informal setting of the Board, fair use must not be handled flippantly.

I am not an advocate for test cases. But I do advocate for the power and influence of a strong legal analysis.  The fair use issues coming before the Board must be thoroughly researched and persuasively argued.  Parties need to consider carefully whether their case has the legal bolster it deserves.  If not, opting out may be the right choice.  Parties are allowed to have legal representation, and law students are also permitted to appear before the Board.  Law firms and law school clinics may need to add the Copyright Claims Board to their scope of service.  We are at the start of something new, and fair use needs to be nurtured and protected from the first day that the Copyright Claims Board opens its doors later this year.

Kenneth D. Crews is an attorney and copyright consultant with Gipson Hoffman & Pancione in Los Angeles, and he was previously a faculty member and copyright policy officer at Indiana and Columbia Universities.  He is the author numerous publications on fair use, including Copyright Law for Librarians and Educators (4th ed.), published by ALA Editions.

Fair Dealing Week Makes a Home Coming

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I am very excited to host our colleagues (and friends), Jane Secker and Chris Morrison, in their first blog post on this platform for Fair Use/Fair Dealing Week. Join Jane and Chris as they explore their roles in the UK copyright space, the differences and similarities between fair use and fair dealing, and reveal the plans for their first full week of fair dealing events happening in the UK! – Kyle K. Courtney

Fair Dealing Week Makes a Home Coming

Photo caption: Jane and Chris in their Periodic Table of UK Copyright Exceptions t-shirts

It’s incredibly exciting that for the first time, the UK is going to be participating in Fair Use Week, or in our case, Fair Dealing Week. As two committed copyright enthusiasts we wanted to tell you about why we decided to get UK universities, libraries, and cultural institutions involved in the event. We also wanted to explain a bit about what fair dealing is, how it relates to fair use, and also why being late to the party isn’t so bad (in fact it provides an opportunity to explore a bit of copyright history). Finally, we have a few exciting free online events happening this week and we’d love to see some of you at these events.

Who are we, and what is our copyright story?

We are Jane Secker and Chris Morrison, two self-confessed copyright geeks who co-founded the website copyrightliteracy.org. We use this to help promote understanding of copyright and host our openly licensed copyright resources and games.

Jane is a Senior Lecturer in Educational Development at City, University of London. She teaches modules on digital education as part of a Masters in Academic Practice. Prior to this she was the Copyright and Digital Literacy Advisor at LSE for over 15 years. Jane is Chair of the CILIP Information Literacy Group, that runs the LILAC conference and a member of various copyright committees in the UK including the Copyright Advisory Panel which is a governance group of the UK’s Intellectual Property Office, and the Libraries and Archives Copyright Alliance.

Chris is currently the Copyright, Licensing and Policy Manager at the University of Kent, responsible for copyright policy, licensing, training and advice. However, he is also to take up a new role starting in April 2022 as Copyright and Licensing Specialist at the Bodleian Libraries, University of Oxford. Chris was previously the Copyright Assurance Manager at the British Library and before that worked for music collecting society PRS for Music. Chris holds a masters in copyright law at King’s College London and his dissertation explored the understanding and interpretation of Section 32 of the Copyright, Designs and Patents Act ‘Illustration for Instruction’ by UK universities.

We first met in 2014, shortly after copyright law had been reformed in the UK and came together to run a series of training sessions for librarians on the updates to the law. We collaborated to create Copyright the Card Game (an openly licensed educational game to teach people about copyright that has been adapted for use in the US, Canada, New Zealand and Australia) and in 2016 our book Copyright and E-learning a guide for practitioners was published. We take a playful approach to copyright education, we a range of copyright t-shirts and even have a podcast called Copyright Waffle, where you can hear us chat to various guests about their copyright story.

Our work has really accelerated since 2020. We have been running a regular webinar series on the topic of copyright and online learning since March 2020, and in November 2020 we co-founded the Association for Learning Technology’s Copyright and Online Learning (CoOL) Special Interest Group. This reflects the growth in interest in copyright in the education sector since the pandemic. It was under the auspices of this group that we got involved with Fair Dealing Week. Kyle K Courtney is the CoOL SIG’s international representative, and we’ve been hugely inspired by Kyle’s work on the Copyright First Responders programme and his championing of copyright exceptions through the continued creation, promotion, and expansion of Fair Use Week. In the last few years we’ve focused a lot of our efforts into helping the education community in the UK understand how copyright exceptions work and their relationship to licenses. This involves grappling with the concept of fair dealing and balancing the risk of using works under fair dealing exceptions against the risk of failing our students by not providing them with educational resources or opportunities to learn by creating work based on the work of others.

Fair Dealing and the origins of Fair Use

When we talk to people about copyright, they usually refer to the more widely known term fair use, rather than the slightly confusingly worded term ‘fair dealing.’ This prompts us to talk about the differences between the two.

Fair use (as I am sure readers of this blog will know) is a legal doctrine in the US Copyright Act, which allows use of copyright material without the permission of the copyright owner, according to a ‘four factor’ test. It’s traditionally considered to be a more flexible and broader doctrine than the delimited UK concept of fair dealing. However, we will see they come from the same origins and do serve a very similar purpose, of providing balance in copyright laws by limiting the otherwise expansive exclusive rights conferred on rights holders.

The common origin of both fair and use and fair dealing comes from English court cases of the 18th century which considered the extent to which abridgements of literary works were fair. These ‘fair abridgement’ cases are described by Professor Ronan Deazley with his customary verve and flair in the article ‘The Statute of Anne and the Great Abridgement Swindle’.[i] The relevance of them to the US doctrine is also described in Matthew Sag’s seminal article ‘The Pre-History of Fair Use’.[ii] This common history between fair use and fair dealing is reflected in the fact that Commonwealth (i.e. ex-British colonial) countries such as Australia, Canada, New Zealand and India also have fair dealing provisions.

However, despite their common ancestry there are some key differences. Unlike fair use, fair dealing is not defined in the UK statute – this means that its meaning comes almost entirely from a reading of the case law. In addition to this UK fair dealing is not described as a ‘user right’ in the same way that fair use is in the US, or in the way that fair dealing is under Canadian law. Another difference is that the concept of ‘transformative use’ as defined by Justice Leval[iii] has not been adopted by the British courts when looking at fair dealing, in the same way as has been done in the US. And finally a key difference is that UK fair dealing provisions can only be applied to four specific types of activity – quotation (including criticism and review and news reporting), non-commercial research and private study, illustration for instruction (i.e. teaching) and caricature, parody and pastiche.

But even with these differences, fair use and fair dealing share the same aim in determining how a ‘fair and honest minded person’ would deal with a copyright work if they didn’t have permission. When we play copyright the card game, we ask people to consider the following questions associated with fair dealing:

  • Does using the work affect the market for the original work? Does it affect or substitute the normal exploitation of the work?
  • Is the amount of the work taken reasonable and appropriate? Was it necessary to use the amount?

Those familiar with the four factors of fair use will find these questions looking very familiar. And in fact Professors Tanya Aplin and Lionel Bently have recently argued that the Berne Convention creates a ‘Global Mandatory Fair Use’ requirement that requires all jurisdictions to adopt fair use or an equivalent broadly framed fair practice exception.

Whilst we find the latest cutting edge scholarship fascinating from our perspective of being copyright geeks, we are also aware that as educators we need to frame these issues in ways that communities are able to engage with. We have noticed that teachers and lecturers often feel uncertain about how copyright works, leading some to avoid using specific content for teaching and others to believe that anything goes. We also note that they often want to be given a simple and clear answer on whether their proposed activity is lawful – something which rights holders often refer to as the benefit of providing content under license.

We believe it’s important that we do make use of the flexibility provided by copyright exceptions as a vital supplement to licenses. Obtaining permission or a license for a work is not always practical, for example of when a lecturer uses an image in a slide to illustrate a point in their teaching, or shows a clip of a video, or may need to quote some text. We tend to advise those wishing to rely on a copyright exception to weigh this up by looking at whether licenses are available, whether getting permission is feasible and how much of an appetite they, or their organisation have for risk.

We are therefore absolutely delighted to be fusing all of these different aspects of fair dealing together in a fantastic programme of events. We will be hearing from leading UK scholars, researchers, teachers, film makers and a host of others across multiple cultural and creative organisations.

UK Fair Dealing Week Overview

Photo Caption: Jane and Chris chat to Kyle Courtney about participating in Fair Dealing Week

Working with colleagues in the ALT Copyright and Online Learning Special Interest Group (CoOLSIG), we have a series of events happening this week that both celebrate and provide information about the UK’s fair dealing exceptions. We hope to see some of you at one or more of these free online events, and may fair use / fair dealing be with you at all times:

Monday 21st February

  • The online launch event is being hosted by Chris Morrison and Dr. Jane Secker. It is also featuring Kyle K Courtney and Dr Emily Hudson at the Institute of Advanced Legal Studies (IALS), 6-7.30pm (GMT) on Zoom. The launch event will present the basic principles of Fair Dealing in the UK and focus on best practice, along with directing attendees to shared resources, including new guidance from the IALS.  Book here.

Wednesday 23rd February

Thursday 24th February

  • SCURL Copyright and Other Legal group, Fair Dealing Coffee Morning. The Challenge of Using Copyright Exceptions for Global Online Teaching with Debbie McDonnell, British Council. 10-11am (GMT). This informal online event will be kick started with a presentation from Debbie, where the challenges around using the Fair Dealing exceptions outside the UK will be explored, along with assessing the associated risk, and best practice. This will be followed up with Q&A and discussion session.  More details and booking.
  • Bloomsbury Learning Exchange (BLE) Fair Dealing Panel Discussion. Primarily aimed at BLE members, join librarians and learning technologists to discuss what fair dealing means in practice. Held online. 30-4pm (GMT). Please contact s.sherman@ble.ac.uk to book a place.

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[i] Ronan Deazley, The Statute of Anne and the Great Abridgement Swindle, 47 Hous. L. Rev. (2010). Available at: https://houstonlawreview.org/article/4174-the-statute-of-anne-and-the-great-abridgement-swindle

[ii] Sag, Matthew, The Pre-History of Fair Use, 76 BROOK. LAW REV. 1371 (2011). Available at: https://lawecommons.luc.edu/cgi/viewcontent.cgi?article=1157&context=facpubs

[iii] Pierre N. Leval, Toward a Fair Use Standard, Harvard Law Review Vol. 103, No. 5 (Mar., 1990), pp. 1105-1136 (32 pages) Published By: The Harvard Law Review Association https://doi.org/10.2307/1341457 https://www.jstor.org/stable/1341457