Changes to Permitted Uses

Changes to copyright law came into force in the UK on 1 June 2014, and implement policies developed by the EU aimed at facilitating use of creative works in the post-digital age.

UK’s Copyright, Designs and Patents Act 1988 is amended to catch up with and regularise rapid digital technological advances, and what have become common practices, over the past decade. Restrictions are relaxed on digital and other uses of the content of books, music, films, photographs, and visual art. In other words, certain uses that society now takes for granted (but were technically violations of copyright) are now automatically permitted by law, and no longer controlled exclusively by copyright owners. At the same time, authors of copyright works are still given a measure of economic protection. Let us consider four areas in more detail.

Personal Copying For Private Use
Chiefly aimed at purchasers of digital music and literature (but including visual art bought digitally), we are now allowed to copy media we own from one medium or device to another for our own private use and for non-commercial purposes; but we are not allowed to give copies we make to other people. Personal copying may include cloud storage or other backing up/ archiving. Interestingly, contractual terms and conditions of sale (agreed to before purchasing the first digital file) are unenforceable if they seek to prevent or restrict the making of a personal copy in accordance with this new law. Notably personal copying done at any time before 1 June 2014 (along the lines of the new law) is legitimised by the new law as if it had then been in force – in other words, the new law is retroactive.

Research and Preservation
Fair dealing (effectively non-commercial use) with literary and visual art works for the purposes of research and private study have always been permitted by UK (and most other countries), so long as the original author is credited/acknowledged. The new change now embraces sound recordings, films and broadcasts; and usefully allows libraries to provide copies to researchers/students with an entire copy of a work (not merely a ‘reasonable proportion’). Researchers must continue to provide libraries with a written (now including electronic) declaration confirming they will be using the work for non-commercial research or private study purposes.

Preservation of original works will be greatly enhanced by new provisions permitting cultural institutions to make digital copies of works too fragile for physical display – including for the first time visual art works, sound recordings and films. Accordingly, museums and galleries are now permitted to make such preservation copies; but only if it is not ‘reasonably practical’ for the institution to buy a replacement copy. In addition, institutions are now also permitted to make digitised preservation copies of works available for research or private study via dedicated terminals on their premises.

Teaching and Learning
A variety of digital materials is now commonly used in schools and universities, and new provisions regularise such uses and remove bureaucratic administrative burdens. Teachers and lecturers will be permitted to use digital copies of copyright material for the purposes of instruction, so long as such use is non-commercial fair dealing; and students will be permitted to make notes digitally including copying of digital material supplied to them. Consistent with ethical academic practice, such digital teaching and learning must include credit/acknowledgement of original authors. Sensibly, such newly permitted uses now extend to distance learning programmes and other virtual learning environments (not just traditional classroom teaching).

Caricature, Parody, Pastiche, and Quotation
Significant new provisions recognise that authors across the creative arts have increasingly over the past decade embraced digital technology to create new works that sample and/or remix elements of other artists’ works. New provisions allow any uses (not only digital) for the purposes of caricature, parody, pastiche, or quotation – so long as they are judged by courts to be fair dealing. And any contractual terms and conditions are unenforceable if they seek to prevent or restrict caricature (and so on) in accordance with this new law.

In relation to appropriation of elements of other authors’ copyright works, it is important to stress that only limited and moderate amounts are allowed to be used without permission. In other words, not whole or substantial parts of others’ works: fragments may be ‘cut and pasted’ to create a new collaged or assembled work – and may now include text, recorded sound, film and video, and broadcast material. It is equally important is to stress that such appropriations are permissible only if the use of the new work is fair.

UK courts will continue to decide whether a dealing is fair on a case by case basis, which makes it impossible for arts lawyers to advise would-be users what courts are likely to permit: key factors UK courts take into account include how a ‘fair-minded and honest person’ would deal with the work, the nature and extent of the appropriation, and any commercial damage the dealing may have done to the borrowed work’s market place. In the US, judicial criteria for deciding  fair use has been developed since the mid-19th century and is now embodied within federal copyright legislation, which specifies four factors that courts must consider: the purpose and character of the use, including whether such use is of commercial nature or is for non-profit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for, or value of, the copyrighted work. As with UK fair dealing law, US fair use criteria do not specify numbers of words, lines, notes, or images that may safely be taken without permission; nor do they permit a user to escape liability by simply crediting/acknowledging the source of the original material.

The new UK Regulations do not define the meaning of ‘caricature, parody or pastiche’. UK courts will have to decide on a case by case basis not only whether a use is fair, but also whether fair use amounts to caricature or parody or pastiche.  Initially courts are likely to rely on standard dictionary definitions, such as: parody imitates a work for humorous or satirical effect, commenting on the original work, its subject, author, style, or some other target; pastiche is a musical or other composition made up of selections from various sources or one that imitates the style of another artist or period; caricature portrays its subject in a simplified or exaggerated way, which may be insulting or complimentary and may serve a political purpose or be solely for entertainment.

Many other countries’ copyright laws have permitted caricature (and so on) for many years, some legislatures defining precisely the legal meaning and others relying on their courts to develop judicial meanings for such terms. For example, the US Supreme Court has limited permissible parody only to the use of works that are widely acknowledged to be iconic – judicial thinking being that iconic works are so established in the cultural and economic market places that they do not need copyright law’s protection against (ab)use. It will be interesting and important to see whether UK courts will adopt a similar approach.

© Henry Lydiate 2014

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.