Image - Pixabay, no attribution required.

Image – Pixabay, no attribution required.

I was recently asked about the Copyright exception ‘Fair Dealing’ and what this means when uploading media content such as videos, podcasts and images within a VLE such as NILE.

As an experienced web designer my understanding of copyright is based on knowledge of online publishing rather than use in Education and therefore I was interested in finding out exactly what this means, and how it applies to our VLE – NILE.

But, before I begin looking at this, I’d like to signpost you to Iain Griffin’s comprehensive post ‘Copyright and online publishing‘. (1) which explains the functions of copyright and contains links to a wide range of online resources which are freely available and can be legally included in any teaching materials without infringing copyright.

What does the term ‘Fair Dealing’ mean?

The UK government’s guidance ‘Exceptions to copyright: an overview‘ (2) include a number of possible exceptions to copyright which come under the term ‘Fair dealing’:

  • Caricature, Parody or Pastiche
  • Quotation
  • Research and Private Study
  • Text and Data-Mining
  • Archiving and Preservation
  • Public Administration
  • Accessible formats for disabled people

(Information on each of these is covered in the guide above).

The guide also states that ‘Fair Dealing’ is only applicable when no other licence is in place. so existing licences such as the CLA (Copyright Licensing Agency) (3) for books and journals, ERA (Educational Recording Agency) (4) for off-air broadcast recordings, and other licences such as those with third-party educational providers all take precedence.

From the government document Exceptions to copyright: Education and Teaching (5) I have pulled out a few key points that I think help in our understanding of how this law applies to a VLE.

  1. Understanding the term ‘Fair Dealing’ 
    ‘Fair dealing’ is a legal term used to establish whether a use of copyright material is lawful or whether it infringes copyright. There is no statutory definition of fair dealing – it will always be a matter of fact, degree and impression in each case. The question to be asked is: how would a fairminded and honest person have dealt with the work?
  2. Fair dealing includes the use of multimedia content.
    Fair Dealing… ‘permits minor acts of copying for teaching purposes, as long as the use is considered fair and reasonable. So, teachers will be able to do things like displaying webpages or quotes on interactive whiteboards, without having to seek additional permissions.’
  3. ‘Fair dealing’ is not a way of avoiding licensing.
    The majority of uses of copyright materials continue to require permission from copyright owners, so you should be careful when considering whether you can rely on an 
    exception, and if in doubt you should seek legal advice.
  4. Is Fair dealing internationally recognised?
    No. Copyright is a territorial right, and different acts are permitted in different countries. You need to ensure that you comply with the laws of the countries in which you provide online resources.

Relevant sections from The Copyright, Designs and Patents Act 1988.

The ‘Illustration for instruction’ exclusion is referred to in a post on copyrightuser.org (6) by Ruth Soetendorp and Bartolomeo Meletti.

This is from Section 32 of the ‘Copyright, Designs and Patents Act 1988‘ (7), and includes three stipulations:

  • The use of materials must be ‘minor and fair’.
  • The inclusion of materials must not undermine sales.
  • Appropriate acknowledgement of authorship must (where possible) be given.

JISC’s guidance on ‘Fair Dealing‘ (8) (Joint Information Systems Committee) states that ‘Under Section 32 CDPA – ‘Illustration for instruction’, it is valid for a lecturer to use extracts from ‘films, sound recordings and broadcasts as well as text, music and artistic works to illustrate a teaching point.’ However, is unclear on whether this applies within a classroom or in a VLE.

The reason for the lack of clarity is because in the original legislation The Copyright, Designs and Patents Act 1988 and the updated The Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014 (9) neither is specific to where this exception ‘illustration for instructions’ applies.

Confusingly, in the more recent legislation (2014) there is specific mention of use in a ‘secure electronic network accessible only by the establishment’s pupils and staff’, but only in Sections 35 and 36.

Section 35 covers the use of ‘broadcast’ materials –  which are most likely already covered by University’s ERA license, and Section 36 ‘Copying and use of extracts of works by educational establishments’ stipulates that this does not include ‘artistic work’ or ‘broadcast’ materials, and therefore is more likely to be most relevant to materials such as books and journals which are also already covered by the CLA.

As mentioned previously the ‘Fair Dealing’ exceptions only come into play when existing licences do not exist, so this may explain why these exclusions not included in JISC or copyrightuser.org’s guidance and the older ‘illustration for instruction’ is more widely cited.

Examples of how other Universities interpret copyright exceptions.

The points above are interesting because available ‘Fair dealing’ guidance published online by other UK Universities’ most commonly mention the exception Section 32 ”illustration for instruction’. However, the guidance is not consistant across the sector.

The University of Cambridge web page; ‘Copyright and VLE’ (10), proposes that (their) academics are permitted to use short extracts from ‘literary and musical works, films, sound recordings and broadcasts as well as artistic works to illustrate or reinforce a teaching point in lectures and in restricted intranets such as Moodle, provided the original source is explicitly acknowledged’, on the condition that access is ‘limited to those receiving the instruction, preferably to those enrolled on a particular course of study’, and materials are not made available on outward facing web sites such as faculty, departmental or social media.

Staffordshire University’s’ Copyright Guidance (11) takes a similar approach and suggest that it is permissible to take clips off a DVD and upload to a VLE for the purposes of ‘ illustration for instruction’, if the three stipulations in Section 32 are met. They also consider the restriction of learner access to the VLE – a secure network, as a factor in whether the use is considered ‘fair’, and extend their guidance the use of images and lecture capture where copyright materials are used to ‘illustrate a teaching point’.

Guidance on embedded media in Brunel University Library’s post ‘Can I use YouTube content for teaching in Blackboard Learn?’ (12) suggests that embedding a YouTube clip in a VLE is more complex than viewing it as an individual, as sharing a YouTube clip with multiple users ‘may be in breach of UK copyright law as a secondary infringement’. As a result, they go beyond YouTube’s recommendation (13) that the educator should request permission from the uploader, and suggest they should also check that ‘the person granting permission is authorised to do so’.

Fair Dealing at the University of Northampton.

Head of Academic Services (Library and Learning Services), Georgina Dimmock, has provided guidance on copyright exceptions and fair dealing, which can be found on the LLS Copyright (14) web pages. Due to the complexity of the law, and how the fair dealing exceptions can be used with Higher Education, SCONUL (Standing Council on University and National Libraries) is looking to commission a copyright expert to advise on how libraries can use exceptions to support teaching and learning in institutions. (15)

Georgina notes that when using a Fair Dealing exception, it is the responsibility of an academic to make a decision on whether it is ‘Fair dealing’, and individual academics must consider the risks of material uploaded to a VLE.

What action may be taken? 

JISC’s guidance Enforcement of copyright, (16) advises that the copyright holder must take legal action against the person they believe has infringed their rights, and by applying to the course the individual can;

  • Stop a person making further infringing use of the material by seeking an injunction, interdict or other order.
  • Claim damages from those who infringe their copyright.
  • Require the infringing party to give up or destroy the infringing.

As the UK Law is based on the principle of ‘Common Law‘ (17) any successful cases will set a precedent for future prosecutions, a point that is driven home on a post on the Conversation.com (18) web site details how a Canadian University has been successfully prosecuted under copyright law and, ‘must pay millions of dollars in licensing fees..’ as a result of a ‘more restrictive interpretation of fair dealing when it comes to educational materials’.

While this international case does not affect UK case law, it does highlight that should a copyright prosecution successfully argue that ‘illustration to instruction’ does not apply to online distribution in a VLE, UK Universities may be required to take a harder line with staff’s use of copyrighted materials in the future.

Copyright risks and alternatives.

As any use of copyright materials contains an element of risk, it would be advisable for staff to consider whether there are licensed alternatives available such as BoB (Box of Broadcasts) (19) which contains over 2 million recordings covered by our ERG licence, or to filter the search in platforms such as YouTube for materials that licensed under a Creative Commons license. (20) and are attributable to a reliable source such as TedTalks (21) or YouTube Education (22) where the copyright holder can be reliably identified.

Where media is only available without a creative commons license, an academic will need to make a decision on whether ‘Fair dealing’ applies, if they believe so, they should be knowledgable of restrictions of the exclusion ‘Illustration for instruction’ and ensure that any media used is; minor and fair, does not affect the potential sales of the copyright holder, and that attribution is given correctly.

When considering this I suggest it’s advisable to imagine yourself before a judge: do you think you could argue successfully that your use of materials under illustration for instruction fits into all of these criteria?

Post Contributors:

Richard Byles – Learning Technologist.
Georgina Dimmock – Head of Academic Services (Library and Learning Services)

References:

(1). Griffin, I., 2015. Copyright and online publishing. The University of Northampton. [ONLINE] Available at: http://blogs.northampton.ac.uk/learntech/2015/06/05/copyright-online-publishing/. [Accessed 6 March 2019].

(2). Intellectual Property Office Online. 2014. Exceptions to copyright: An Overview. [ONLINE] Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/448269/Exceptions_to_copyright_-_An_Overview.pdf. [Accessed 6 March 2019].

(3) CLA (Copyright Licensing Agency Limited). 2019. [ONLINE] Available at: https://www.cla.co.uk/higher-education-licence

(4) ERA (Educational Recording Agency) 2019. [ONLINE] Available at: https://era.org.uk/the-licence/

(5) Intellectual Property Office Online. 2014. Exceptions to copyright: Education and Teaching. [ONLINE] Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/375951/Education_and_Teaching.pdf. [Accessed 6 March 2019].

(6) Soetendorp, R and Meletti, B. Unknown. EducationCopyrightuser Organisation[ONLINE] Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/375951/Education_and_Teaching.pdf. [Accessed 6 March 2019].

(7) UK Gov. 2014. Copyright, Designs and Patents Act 1988. [ONLINE] Available at: http://www.legislation.gov.uk/ukpga/1988/48/part/I/chapter/III/crossheading/education. [Accessed 6 March 2019].

(8) JISC. 2014. Exceptions to infringement of copyright. [ONLINE] Available at: https://www.jisc.ac.uk/guides/copyright-law/exceptions-to-infringement-of-copyright. [Accessed 6 March 2019]

(9) UK Gov. 2014. The Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014 [ONLINE] Available at: http://www.legislation.gov.uk/uksi/2014/1372/regulation/4/made [Accessed 11 July 2019]

(10) University of Cambridge. 2019. Scholarly Communication: Copyright and VLE. [ONLINE] Available at: https://osc.cam.ac.uk/copyright/copyright-and-vle. [Accessed 6 March 2019]

(11) Howlett, S. 2017. Copyright Guidance Staffordshire UniversityStaffordshire University Library.[ONLINE] Available at: https://libguides.staffs.ac.uk/c.php?g=143453&p=937822. [Accessed 6 March 2019].

(12) Ritchie, M. 2014. Q. Can I use YouTube content for teaching in Blackboard Learn? [ONLINE] Available at: https://libanswers.brunel.ac.uk/faq/13827 [Accessed 6 March 2019].

(13) Google/YouTube Support. Unknown. Educator resources. [ONLINE] Available at: https://support.google.com/youtube/answer/2802327?hl=en. [Accessed 6 March 2019].

(14) UoN Library and Learning Services. 2019. [ONLINE] LLS Copyright: Copyright and licensing in Higher Education: Copyright exceptions and fair dealingAvailable at: http://libguides.northampton.ac.uk/copyright/copyright_exceptions [Accessed 11 July 2019]

(15) SCONUL. 2019. Call to action: developing a copyright briefing – Wed, 23 Jan 2019. [ONLINE] Available at: https://www.sconul.ac.uk/news/call-to-action-developing-a-copyright-briefing. [Accessed 6 March 2019].

(16) JISC. 2017. Copyright law. [ONLINE] Available at: https://www.jisc.ac.uk/guides/copyright-law. [Accessed 6 March 2019].

(17) Bodleian Libraries University of Oxford. 2018. United Kingdom Law: Case law. [ONLINE] Available at: http://ox.libguides.com/c.php?g=422832&p=2887381. [Accessed 6 March 2019].

(18) Bannerman, S., 2017. Why universities can’t be expected to police copyright infringementThe Conversation Trust (UK) [online]. Available from: https://theconversation.com/why-universities-cant-be-expected-to-police-copyright-infringement-82677. [Accessed 6 March 2019].

(19) Learning on Screen – the British Universities and Colleges Film and Video Council. Box of Broadcasts. 2019. [ONLINE] Available at: https://learningonscreen.ac.uk/ondemand

(20) National Copyright Unit Australia. Unknown. How to find Creative Commons Material using YouTube. [ONLINE] Available at: http://www.smartcopying.edu.au/open-education/creative-commons/creative-commons-information-pack-for-teachers-and-students/how-to-find-creative-commons-material-using-youtube. [Accessed 6 March 2019].

(21) Ted talks. Unknown. Ted Talks Youtube Channel [ONLINE] Available at: https://www.youtube.com/user/TEDtalksDirector

(21) YouTube Learning. Unknown. YouTube Learning Channel [ONLINE] Available at: https://www.youtube.com/education

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