Copyright: A guide to public domain works and the ‘Fair Dealing’ defences

In the UK, the Copyright Designs and Patents Act 1988 (CDPA) protects intangible property rights vesting in, amongst other things; literary, dramatic, musical and artist works (including photographs and other graphic works), sound recordings and films. Subject to meeting certain requirements, the copyright in the work arises automatically from the moment the work is recorded in material form, or in some cases published, until 70 years from the end of the calendar year in which the author who created the work dies.

The owner of a copyright work has an exclusive right to do certain acts with the work. These acts include; copying, issuing, playing, communicating, renting, lending and adapting the work. Consequently, if you do not own a copyright work and want do any of these acts in relation to either  the whole or a substantial part of the copyright work you must do so with a licence from the copyright owner.

Can I use a small extract of a third party’s copyright work without a licence? The issue of what constitutes a “substantial” part is a common pitfall.  The test for “substantial part” is a qualitative and not quantitative test. For example, in the case of HRH Prince of Wales v Associated Newspapers Ltd 2006, it was held that a limited number of pages extracted from a diary amounted to a substantial part of the whole diary as the parts copied and published were the parts of most interest to the readers of a newspaper.  The same principle applies to other copyright works. For example, copying a short clip of a video uploaded on YouTube and editing and uploading it to a website or social media platform. Whilst the clip may only be small extract, it may still be a substantial part of the original work particularly if it is distinctive or of particular interest.

Public Domain

What is “public domain” and how does it apply to copyright works?  The legal concept of public domain property dates back to Ancient Rome and is rooted in the Roman terms: res nullius (things not yet appropriated or abandoned); res communes (things owned by no one and subject to use by all, such as light, air and the sea) and res publicae (public things).

Under the CDPA, a copyright work will ‘fall into public domain’ on:

• Expiry (i.e. after 70 years from the calendar year in which the creator of the work died). For example, the copyright in the literary works of William Shakespeare (who died on 23 April 1616), Emily Bronte (who died 19 December 1848) and Mary Shelley (who died on 1 February 1851) have expired and fallen into the public domain; or
• Being waived. This applies where the owner of the work has expressly waived the right to enforce the copyright in the work. For example, the copyright subsisting in open source software, such as; LibreOffice, VLC Media Player and Brave (which have in each case been released in the last decade) have been expressly waived by the owners.

Where a copyright work is in the public domain, it is freely available to the public without a licence, charge or permission. Consequently, there is no liability for copyright infringement. However, beware that copyright in “expired” works may still apply to typographical arrangements or recordings of the work, even if not to the work itself.

It is a common misconception, especially with works found on the internet, that a copyright work falls into the public domain either because it has been made available to the public and/or because it has been published without a © symbol and/or copyright notice stating the owner and the year of first publication. A copyright work must be expressly communicated as a public domain work. There is no requirement for an owner to use a copyright notice and copyright works published without a copyright notice will nevertheless remain in copyright.

 ‘Fair Dealing’ Defences

When can you use a third party’s copyright work without a licence?  You may be able to use a copyright work (before it falls into the public domain) without a licence from, payment to or the permission of the copyright owner if your use meets the requirements of the ‘fair dealing’ defences under the CDPA.

In each case, whether a use is or is not, ‘fair dealing’ will be a matter of fact, degree and overall impression in each case having asked: how would a fair-minded and honest person have dealt with the work?  If you have copied an unreasonable, disproportionate or more than necessary amount of the original work, the fair dealing defences are unlikely to be available. Additionally, if your use of the work affects the market for the owner’s commercial exploration of the work a defence of fair dealing will also not be available.

There a number of specific fair dealing defences which permit libraries and education institutions to use copyright works freely. However, there are also a number of more widely available fair dealing defences which allow you to use a copyright works, that have previously been made available to the public with the consent of the copyright owner, commercially, if it is for the purposes of:

• Quotation (for criticism, review or otherwise). Allows you to deal with a copyright work for the purpose of criticism or review of that copyright work, another copyright work or the performance of a copyright work. The quotation must be accompanied by a sufficient acknowledgement identifying the copyright work and owner. A quotation defence is not usually available for photographic works since any use is very likely to affect the normal exploitation of the photograph;
• Reporting current events. Which allows an extract from a copyright work (except photographs) to be used to report current events. For example, a clip taken from a broadcast of football match may be used for the purposes of reporting on that specific football match as a piece of current news but a historic clip of a different football match is unlikely to be permitted under the exception for that purpose; and
• Parody, caricature, pastiche. As the UK Intellectual Property Office explains in its guidance, a comedian may use a few lines of a song for a parody sketch, a cartoonist can use a well-known art work to create a caricature or an artist may use small fragments from films to create a larger pastiche art work.

Before using a copyright work without a licence from the copyright owner, you must ensure that you meet the fair dealing criteria to avoid copyright infringement. Where a copyright work is used without a licence and it is not “fair dealing”, the copyright owner will be entitled to an injunction to prevent you from using the work and to damages to reflect the loss it has suffered, or profits you have made, from your use of the copyright work.

It is therefore important to answer one of the following questions positively before using the whole or substantial part of a copyright work belonging to a third party:

• Is the copyright work in the public domain?; or
• Does your intended use of the work satisfy the requirements of fair dealing?; or
• Do I have a licence to use the copyright work in the UK for this purpose?

For the vast majority of businesses, a licence to use the copyright work will need to be obtained.

(Image by kalhh from Pixabay)