Copyright, Licensing and GDPR: Copyright Law Exceptions

Fair Dealing for non commercial research and private study has been extended (s29).  This now covers all types of works.  Staff and students can copy short extracts from sound recordings, films and broadcasts.  They will be permitted to do this irrespective of contracts and licence terms, as the exception cannot be overridden, for example from an electronic resource.  Any copying under this exception should be accompanied by a sufficient acknowledgement, such as the author’s name and title of the work.

A new exception has been added to s29, the Text and Data Mining exception (s29A).  This will enable UK researchers to copy a work in order to analysis it using text and data mining techniques without the risk of infringement.  The exception applies to analysis for non commercial research purpose, but remember that you must have a lawful copy of the work (e.g. from a library).  Contracts cannot override data mining provisions. 

Under Section 41 copying for other libraries is extended and now includes all types of works.  Under this provision the works are not subject to contracts and a single copy of a whole or part of a published work can be copied (usually for inter library loans).

Section 42A permits acceptance of electronic declarations.  The provision will permit a single copy of one article from a periodical, or a reasonable proportion of any published work by a not for profit library.  The use has to be for non-commercial research or private study and contracts cannot override the provision.

Sections 31A to 31F of the CDPA have been amended.  Previously the exceptions were limited to visually impaired persons, but now they have expanded to include all disabled persons where their impairment affects their ability to access work on an equal basis to someone without the impairment.  For example students with dyslexia are now covered by the new exception.  All copyright work is now covered, including recordings of performances and broadcasts, film and video clips.  Furthermore, universities can lawfully insert subtitle on a broadcast or a video clip for disabled learners, where there is no commercial alternative available at a reasonable cost, without the risk of copyright infringement.  Any copying under this exception should be accompanied by a sufficient acknowledgement, such as the author’s name and title of the work, where practical.

Under Illustration for Instruction (s32) it is possible to copy all types of works.  So an academic can use extracts from sound recordings, films and broadcasts.  Copying is no longer limited to hand but can take advantage of digital technology, for example interactive white boards with appropriate acknowledgment.  You can only copy as much as is needed and must be illustrative of a subject you are teaching, but subject to fair dealing.

Examination Papers

Illustration for Instruction includes copying for the purpose of an examination.  For lecturers involved in setting examination papers the law requires them to include sufficient acknowledgement of the copied material. 

As it falls within this exception, copying for an examination is subject to fair dealing which means that it has to be considered whether use of the work is fair, which in practice may mean limiting copying to shorter extracts where possible, and restricting who has access to works used to those being examined.

If you would like to include extracts of published works in LearningZone or distribute course packs or photocopies to students, then staff will still need to comply with the conditions of the Copyright Licensing Agency Licence.

Section 36 of the CDPA gives the right for colleges and universities to make reprographic copies of extracts of works to all types of copyright work and the limits of what can be copied are changed to no more than 5% of any work per annum across the institution.  However the provision states that if a licensing scheme exists then the exception can be overridden, which means that the photocopying and scanning of published material is still covered under the CLA (Copyright Licensing Agency) licence.  Where the published material is excluded by the publisher under the CLA licence, published material can be covered under s36, but remember that it must be under 5% per annum and across the institution.  It is recommended that if you do plan to make published material available which is not included under the CLA licence, that you contact the library’s Copyright Officer for further advice.

Any copying under these exceptions should be accompanied by a sufficient acknowledgement, such as the author’s name and title of the work.

Section 35 of the CDPA Act states that a recording of a broadcast, or a copy of such a recording, may be made by or on behalf of an educational establishment without infringing the copyright in the broadcast, provided that it is accompanied by a sufficient acknowledgement and that the educational purposes are non-commercial.  Section 35 has been extended in the new provisions so that off air recordings can now be made available off campus by secure electronic network and accessible using the University’s Single Sign On credentials.  However, this provision is subject to where a licence does not exist, and in this case we have an Educational Recording Agency license (ERA) and in conjunction with Box of Broadcasts, where a number of programmes are available for teaching purposes. Further information is available on the Box of Broadcasts library guide.

The new s.40B of the CDPA 1988 allows librarians, archivists, museums and educational establishments to communicate, or make available to the public, a lawfully acquired work by means of a dedicated terminal without infringing copyright as long as it is for research or private study.  Use of this exception must also comply with any applicable licence attached to the work.  The work must be made accessible on a dedicated terminal on the premises of the institution and not off-site.

Section 42 allows libraries and archives to preserve or replace published material for different types of works, provided it is not practical to purchase the item.  It is now permitted to make reasonable number of copies of items in the permanent collection, and contracts cannot override the provision.  The item must be kept wholly or mainly for reference purposes on the premises, not accessible to public, or available on loan to other libraries, archives or museums.

Section 43 permits copying from all categories of unpublished works, and electronic declaration will be acceptable.  The provision will permit a single copy of one article from a periodical, or a reasonable proportion of any unpublished work.  It has to be for non-commercial research or private study, but in this case contracts can override the provision.