UK: Copyright Restrictions Increased

Last Updated: 25 February 2004
Article by Susan Storor

On 31 October 2003, UK copyright law was amended. A number of previously permitted activities under the Copyright, Designs and Patents Act 1988 have been restricted and many of these will impact on the practices of universities, schools and other educational establishments.

Overview

The following restrictions have been added to most permitted uses of copyright material:

  • permitted activities must be for non-commercial purposes
  • uses of copyright material require acknowledgement.

Non-commercial purposes

Many permitted uses of copyright materials will now only apply to activities undertaken for non-commercial purposes. However, the amendments do not say what amounts to a ‘non-commercial purpose’ and ultimately the European Court of Justice will decide this. In the meantime, it is safe to assume that non-commercial does not mean non-profit or not-for-profit and that any activity that has income generation as a direct or indirect end purpose will be considered commercial.

For example, the following activities are likely to be considered commercial:

  • courses given by a university or other educational establishment where attendees pay a course fee intended to generate income for the university, such as university summer schools
  • university lecturers speaking at conferences or other events where they are paid a fee for speaking
  • university research sponsored by a commercial enterprise.

Educational establishments and their staff will need to look closely at any of their activities that make money and review their use of copyright materials in these areas.

It may be that some of these activities are covered by licences held with the CLA or the NLA. However, some copyright materials are not covered by these bodies. Unpublished materials are an obvious example where permission of the actual copyright owner will be required.

Acknowledgement

Permitted uses of copyright materials now require more frequent acknowledgement of the title and the author of a work from which copyright material is taken. Generally speaking, this is already standard academic practice. However, this may not always be the case, depending on the type of work or the use to which it is put.

Educational establishments will need to undertake more rigorous checks to ensure that all copyright material is sufficiently acknowledged where required.

The permitted acts

The amendments made to permitted acts which are most relevant to educational establishments are:

  • research
  • copying by librarians
  • instruction
  • examination

Research

The provisions permitting fair dealing of certain copyright works for the purposes of research have been narrowed.

Research must now be of a non-commercial purpose and the copyright work must be accompanied by a sufficient acknowledgement.

No acknowledgement is required where it would be impossible for reasons of practicality or otherwise.

Therefore, the use of copyright material in, for example, university research which is either commercially-sponsored or conducted with a view to ultimate commercialisation of an invention is no longer permitted without the express permission of the copyright owner. It is the intended purpose of the research at the time of making use of the copyright material that is relevant. Use of copyright material in research that ultimately results in the commercialisation of an invention will only require permission if that was the intention at the time of copying the material.

Copying by librarians

Generally, where a person was permitted to use copyright material for the purposes of research, a librarian in a not-for-profit library was entitled to supply that person with a copy of that material provided that the librarian was satisfied that the copy was supplied for research purposes. Librarians protected themselves from liability by requiring the person making the request to sign a declaration confirming the purpose of the copying. Now, the librarian must be satisfied that the research is for a non-commercial purpose and must consider any requested declaration accordingly.

Instruction

Previously, copying of copyright material in the course of, or preparation for, instruction was permitted in limited circumstances. The copying had to be done by a person giving or receiving the instruction and could not be by means of a reprographic process. This was intended to permit the copying in manuscript by a teacher or a student of copyright material either in class or in preparation for it.

Now, the permitted use is subject to additional limitations. Either:

  • the instruction must be for non-commercial purposes and the copyright material sufficiently acknowledged; or
  • the copyright material must be sufficiently acknowledged and already available to the public and the use made of it must be fair.

As the permitted copying cannot be by reprographic means, this exception to copyright infringement has always been narrow in any case. It is difficult to imagine it generally applying other than in the schoolroom by oral use or use of the blackboard / whiteboard and subsequent copying in student notes. In this scenario, the further limitations may not be too onerous, although teachers and students will need to be mindful of the requirement for sufficient acknowledgement.

Examination

Previously, copyright was not infringed by anything done for the purposes of an examination by way of setting the questions, communicating the questions to candidates or answering questions. This is now subject to the further requirement that any question be accompanied by a sufficient acknowledgement unless this would be impossible for reasons of impracticality or otherwise.

Quotations from authors forming part of exam questions need to be acknowledged. This may be standard practice. However, exam questions themselves are usually copyright material. Do the original authors of exam questions need to be acknowledged when those questions are used subsequently (either in the same or an amended form)? Usually not.

Acknowledgement is not required where a copyright work has been published anonymously or, with an unpublished work, it is not possible for a person to ascertain the identity of the author after a reasonable enquiry. The author of exam questions is usually not published. However, there will conceivably be situations where this will not be the case and those setting exams ought to be aware of this new requirement. In the case of public examination papers, examination boards handle applications for permission to copy exam papers.

How can we help?

We can assist in a number of ways, including:

  • fully advising on the ways your establishment may be affected by the changes
  • advising on whether licenses cover the activities of your establishment that are no longer permitted under the amended law
  • providing bespoke training to staff and students on what they may and may not do in relation to copyright materials.
  • production of bespoke guidelines and protocols for the use of copyright materials in your organisation.

Action Checklist

  • Audit activities to identify those which may be considered non-commercial and the use of copyright materials in those activities.
  • Check existing licences and permissions from licensing bodies such as CLA, NLA and ERA to see whether the current use of copyright materials is already permitted.
  • If in doubt, speak to the relevant licensing body - licences may need to be amended, or new licences entered.
  • For copyright material not covered by licensing bodies (e.g. examination papers and unpublished works), consider whether permissions from individual copyright owners are needed.
  • Inform staff about more rigorous acknowledgement requirements when using copyright materials.

 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions