Fair use: copyright differences in the UK and US

    A recent US guide outlining ‘fair use’ in the visual arts – uses of copyright-protected artwork which do not need to be cleared with the artist or artist’s estate - has been gaining momentum here in the UK. DACS advises anyone seeking to reproduce an artwork in the UK to be cautious of the guide, and mindful of the differences between UK and US copyright law.

    UK art world should approach the guide with caution

    The US-based College Arts Association’s Code of Best Practice in Fair Use for the Visual Arts aims to help those working in visual art understand how they can use copyright-protected materials safely, without infringing copyright.
     
    It addresses common situations where a curator, academic, writer, teacher or artist might want to reproduce an image of an artwork and outlines circumstances when the US doctrine of ‘fair use’ can be invoked, enabling the reproduction of a copyright-protected work without clearance from the copyright-owner.

    Whilst the Code has some relevance in the UK, it references US copyright law. Differences in our legislation mean that certain reproductions of copyrighted artworks which are permitted in the US could conversely be treated as infringements in the UK, depending on the circumstances.
     
    We therefore advise artists and anyone seeking to reproduce an artwork in the UK to not rely on the guidance provided in the College Arts Association’s Code.
     

    How does UK copyright law differ?

    The UK and US have based their copyright legislation on similar policy objectives; generally, to balance the rights of copyright-owners with a range of other rights, interests and freedoms.
     
    However, the wording of the legislation differs, as does the judicial interpretation and the practical application.
     
    Instead of ‘fair use’, a US concept, in the UK we have ‘fair dealing’ copyright exceptions.

    A very significant difference between the two legislations is the generality of US fair use and the specificity of the UK’s fair dealing copyright exceptions.

    US law - Fair use

    In US law, a range of uses of copyright material are permitted if the use is ‘fair’. Four factors are relevant to determining this:

    • the purpose and character of the use
    • the nature of the copyrighted work
    • the amount and substantiality of what has been taken from the copyrighted work
    • the effect of the use upon the potential market for the copyrighted work


    Fair use applies in a broad and flexible way, regardless of where the work was originally created.

    UK law – Fair dealing

    In contrast, the UK’s fair dealing copyright exceptions outline specific purposes for which a reproduction of a work is permitted, without requiring the copyright owner’s permission.
     
    UK legislation states that a person is not liable for copyright infringement if the use amounts to fair dealing for the purposes of:

    • non-commercial research or private study
    • criticism or review
    • reporting current events
    • illustration for instruction, quotation, or parody, caricature or pastiche

     
    This list is exhaustive, which means that it is irrelevant whether or not the use of copyright-protected work is fair in general, or if it is fair for a purpose not listed in the legislation.
     
    If a use falls within one of these categories, the fairness of the use must also be proven for the exception to apply. A number of factors determine this and are outlined in on Intellectual Property Office's (IPO) website.
     

    When UK and US law overlap

    The laws do overlap on certain uses. The broader-scoped US law covers the narrowly defined UK exceptions. However, because the US law isn’t confined to these UK exceptions, the uses of artworks described in the College Arts Association’s Code are broader than what is permissible in the UK.
     
    If you are seeking copyright guidance for a reproduction of an artwork, we advise you to rely on UK-specific sources only and to be mindful of the differences in copyright law in other countries.
     
    Related links:

     

    Artwork: Untitled, 1993-1994, Li Yuan-chia © Estate of Li Yuan-chia. All rights reserved, DACS 2015. Photograph: Phil Gammon.

    Posted on 20/03/2015 by Jessica Bancroft