Permitted uses and exceptions

An exception doesn’t mean that copyright does not exist in an artistic work – it simply means that under certain circumstances, a particular use will be permitted by law and copyright won’t be infringed. As such, the exceptions should not interfere with the creator’s own interests in the artistic work and how they want to use it.

The Copyright, Designs and Patents Act 1988 (CDPA) contains the UK’s legal framework for copyright, including the exceptions. In 2014 it was updated as part of the Government’s efforts to modernise copyright law.

Fair dealing

Some of the most common exceptions that apply to artistic works are subject to the condition of ‘fair dealing’. For the exception to apply, the way the artistic work is used must be considered fair.

The term ‘fair dealing’ is not defined in legislation, but several factors may be taken into consideration, such as the amount taken (this could include a small but significant part of the artistic work), how the artistic work has been used and if the artistic work has previously been published. The UK concept of ‘fair dealing’ is not to be confused with the US term ‘fair use’ which is much wider. In all the fair dealing exceptions, the artistic work must be used for a specific purpose.

Criticism and review

This exception may apply when an artistic work is reproduced for the purposes of criticism and review, provided that the artistic work is already available to the public, for instance, it has been publicly exhibited. The artist’s name and the title or a description of the artistic work must accompany the use for the exception to apply, unless it is not possible. The law refers to this as ‘sufficient acknowledgement’.

Quotation

The exception for quotation was introduced in 2014 and was developed with literary and musical works in mind, where a quotation could amount to an excerpt on a book cover for instance. The exception applies to works that are already publicly available and where only a limited amount is used for the quotation. The law doesn’t explain how a ‘limited amount’ is to be interpreted in relation to an artistic work, however. For this exception to apply the quotation must be accompanied by sufficient acknowledgement.

Reporting current events

This exception can apply when an artistic work has been reproduced, whether in print, broadcast or online, for the specific purpose of reporting on events of national or political importance. An event is ‘current’ if it deals with a contemporary issue. Sufficient acknowledgment of the artist is generally required unless the artistic work was used in a broadcast. The exception does not apply to photographs.

Parody, caricature and pastiche

The exception concerning parody, caricature and pastiche was introduced in the UK in 2014. The legislation does not define any of the terms so they must be understood in relation to their dictionary definition. As this exception is relatively new, the parameters of these terms are still evolving under UK law. Pastiche can include an artistic work consisting of a combination or selection of other works. Caricature generally portrays the subject of the caricature in an exaggerated form.

Research and private study for non-commercial research

This exception covers research and private study for non-commercial ends only. Under this exception, copies of an artistic work can only be made under very limited circumstances. It would not cover a situation where someone intends to publish an image of an artistic work as part of their research or if their research will lead to the artistic work being distributed to other people, for example if it is distributed among other students in a school or university. For the purposes of research, the artist must be sufficiently acknowledged for the exception to apply.

Preservation or replacement copies

Libraries, archives and museums can use this exception for the purpose of conserving an artistic work in their permanent collection, so long as it is not available for public loan. For example, if an artistic work has been damaged or a part is missing, a cultural institution can create a copy from an item in their permanent collection in order to preserve the original. If the artistic work is one of multiple copies and it is possible to obtain another copy, the exception would not apply.

Educational uses for instruction and examination

Educational establishments have licensing agreements with organisations such as the Copyright Licensing Agency and the Educational Recording Agency which allow teachers to make copies of artistic works in books, journals and broadcasts. Where an artistic work is not covered by a licence, the educational exception may apply. The exception applies to both teachers and students within a school, university or further education college where a teacher is illustrating a point or providing instruction to a student, for example using materials in handouts or slides. The exception also applies where an artistic work is used in an exam question. The artistic work must be sufficiently acknowledged in any of these uses. The use of an artistic work is not covered by this exception if it is being used for commercial purposes.

Text or data mining for non-commercial research

This exception may seem more applicable to books but it does also cover artistic works, for example an illustration in a medical journal. It allows researchers, both individuals and research organisations, to make copies of artistic works to analyse them using computer programmes where the research is not for commercial benefit. The technique generally involves mass copying of electronic information and is used in many fields such as scientific research. The researcher must have the legal right to access the artistic work, for instance via a subscription. Sufficient acknowledgement of the artist is also a condition of the exception.