Although insubstantial use isn’t mentioned in the CDPA, case law would suggest that insubstantial use is permitted. Most educational institutions would take the view that the following examples would be an ‘insubstantial use’ of a copyright work:

Less than 400 words of continuous text from a book.

Less than 800 words of discontinuous text from a book, providing no part is more than 300 words (remember this is qualitative as well as quantitative – so quoting one line giving away the murderer from a whodunnit book would very likely be viewed as copying a substantial part of the work).

Insubstantial copying does not only apply to a literary work, it could equally apply to film, sound recording or an artistic work. However when making decisions it is helpful to bear in mind the much cited dictum of Petersen J. in University of London Press Limited v University Tutorial Press Ltd (1916) 2 Ch. 601 that ‘what is worth copying is prima facie worth protecting’.

Therefore in most instances decisions will be taken on a risk basis. On that basis it is worth considering:

the amount of the work in question (e.g. duration taken from a film or recording);the importance of its use to you (if your work relies heavily on another thirdparty extract, it’s likely you should clear);whether your use of the extract would damage any commercial market.

Fair dealing with a work for the purpose of criticism or review of that, or another work, or of the performance of a work, does not infringe any copyright in the work provided that the work has been made available to the public by an authorised act, and provided that the criticism or review is accompanied by a sufficient acknowledgement. This means an acknowledgement identifying the work and its author. An acknowledgment is inadequate is it does not allow the copyright owner to be identified by a reasonably alert person viewing the work. However, this is not a requirement in the case of fair dealing by film, sound recording or communication to the public for reasons of practicality.

A work is not reviewed or criticised where it is merely reproduced without comment, where it is merely explained or where it is reproduced in a different form.

The fair dealing defence can be made out even where the criticism or review is not aimed at a particular work, but rather a wider matter of which the work in question forms an example. In Pro Sieben Media AG v Carlton UK Television Ltd (2000) ECDR 110, the defendants’ television broadcast sought to criticise cheque-book journalism of all types, and used a clip from a German television broadcast as one illustration of the matter. The Court of Appeal held that the fair dealing defence was applicable as the effect of the broadcast was to criticise the distortion of truth which cheque-book journalism could produce.

There is no need for the criticism to be balanced: the fair dealing defence may be made out even though the criticism is strongly expressed and unbalanced.

It is also permissible to use extracts from a work to criticise just one feature of the work – there is no requirement that those parts copied present a balanced reflection of the work as a whole. For example, in the case of Time Warner Entertainment Co plc v Channel Four Television Corporation plc (1994) EMLR 1, the defendants broadcast a programme about the withdrawal from distribution of the film A Clockwork Orange, which is notorious for its violent sequences and which was withdrawn from the United Kingdom market by the director for the reason that those sequences may result in ‘copycat’ violence. The clips used from the film in the broadcast programme were largely of those violent scenes. The Court of Appeal nevertheless held that the defendant’s programme constituted fair dealing.

In the case of a literary, dramatic, musical or artistic work, fair dealing is permitted for the purposes of non-commercial research or private study. Films and sound recordings are excluded from fair dealing for research purposes. The Gowers Report on Intellectual Property, December 2006, Recommendation 9 has recommended that films and sound recordings should be brought within s.29 of the Act.

s.29(1) of the Act, as amended by the Copyright and Related Rights Regulations 2003, has added the requirement that fair dealing for non-commercial research purposes – although not for private study – must be accompanied by a sufficient acknowledgement.

The interpretation of non-commercial should be made of the research activity at the time of making the copy and does not expect users to forecast how their research might change in future. Both ‘non-commercial research’ and ‘private study’ are generally taken to restrict copying to a single copy.

Fair dealing with a work other than a photograph for the purpose of reporting current events does not infringe any copyright in the work provided that the work has been made available to the public by an authorised act and is accompanied by sufficient acknowledgement unless (in the case of fair dealing by film, sound recording or communication to the public) this is impossible for reasons of practicality or otherwise (s30(1), (1A) and (3) of the Act as amended by the Copyright and Related Rights Regulations 2003.

An acknowledgement is not required in respect of reporting of current events by means of a sound recording, film, broadcast or cable programme, on the basis that acknowledgements would unduly clutter reporting by these forms of media. Sufficient acknowledgement is, however, required where there is copying by any other form of medium.

The phrase ‘current events’ covers most aspects of news, including sport, but it is not without its limits. For example, while television listings may be current, they do not constitute current events and may not be copied under the fair dealing exemption.

s32(3) of the Act permits copying for the purpose of an examination ‘by way of setting the questions, communicating the questions to the candidates or answering the questions’. Copying may take place by any means, including reprography and oral or recorded means, but does not permit the photocopying of musical works for examination purposes (s32(4) of the Act).

This has been done to protect the market for sheet music in the face of a huge number of music examinations.

Where copying is permitted, the questions must be accompanied by sufficient acknowledgement of the source unless this is impossible for reasons of practicality or otherwise.

Copies lawfully made for examination purposes may not be sold, hired or communicated to the public (s32(5) of the Act).

Copyright in a sound recording, film, broadcast or cable programme is not infringed by its being copied by making a film or film soundtrack in the course of instruction, or of preparation for instruction, in the making of the films or film soundtracks, provided the copying is done by a person giving or receiving instruction (and provided the instruction is for a non-commercial purpose) – s32(2) of the Act.

s35(1) permits an educational establishment to record or to make a copy for educational purposes of a broadcast, without infringing the copyright in any underlying literary, dramatic or musical work. In short, s35(1) permits an educational establishment to allow students on the premises to view the recording in their own time, although it does not permit the recording to be shown to students who are not on the premises.

However, the acts of recording or copying are permitted only in so far as a licensing scheme has not been certified under s.141 of the Act. Where a licensing scheme has been certified and is in operation, recording and copying will be lawful only if done in accordance with the scheme and on payment of any necessary royalties.

Two licensing schemes have been authorised by the Secretary of State under ss35 and 141 of the Act, a general scheme (Educational Recording Agency Ltd) which excludes The Open University, and a specific scheme for The Open University. Therefore, Higher Educational Institutions HEIs must hold a license to utilise s35 (1) of the Act. See also http://www.era.org.uk and http://www.ouw.co.uk/info/record.shtm

The Gowers Report on Intellectual Property, December 2006, Recommendation 2, has recommended that the exception in s35(1A) should be extended to students who are not on the premises, as the present rule discriminates against distance-learning students and others working from remote locations.

Photocopying and other forms of reprographic copying by schools and other educational establishments is carried out under licensing arrangements issued and administered by the Copyright Licensing Agency (CLA), a body set up in 1982 and incorporated in January 1983 by authors and publishers who are equally represented, its members being the Authors’ Licensing and Collecting Society and the Publishers’ Licensing Society.

Permitted copying is:

in any work, 5 per cent or one chapter, whichever is greater;in the case of a periodical, one article from any one issue; andin the case of a short story or poem not exceeding 10 pages in length, the whole of the short story or poem.

The licenses do not cover sheet music or musical scores.

The current trial licence grants rights permitting HEIs to make multiple photocopies and scan extracts from printed books, journals and magazines to support students enrolled on courses of study.

The right of a person to make – in domestic premises – and use for private and domestic purposes only, a recording of a broadcast extends to the underlying literary, dramatic or musical work included in the broadcast (s.70 of the Act). However, the time-shifting exception is a limited one and does not provide a blanket right to copy copyright works for domestic use.

The Gowers Report on Intellectual Property, December 2006 has nevertheless recommended that there should be a right to copy material from one format to another for private use. This new exception would apply if certain conditions are met:

It would only apply to private, personal use. The owner would not be permitted to sell, loan, or give away the copy or share it more widely (for example in a file-sharing system or on the internet) and would not be permitted to retain the copy if they were no longer in possession of the original.

Third parties, including commercial enterprises, would not be able to copy works on behalf of consumers.

It would only permit format shifting, i.e. the copying of legitimately owned works to different formats on different devices. It would not include the broader range of private uses, such as multiple copying of all types of work or copying for friends and family. In particular, file sharing of music or film is not format shifting and would not fall within the scope of the exception.

s.50(B) of the Act states:

It is not an infringement of copyright for a lawful user of a copy of a computer program expressed in a low level language –

to convert it into a version expressed in a high level language, orincidentally, in the course of so converting the program, to copy it (that is, to “decompile” it), provided that the conditions in subsection (2) are met.The conditions are that:it is necessary to decompile the program to obtain the information necessary to create an independent program which can be operated with the program decompiled or with another program (“the permitted objective”); andthe information so obtained is not used for any purpose other than the permitted objective.In particular, the conditions in subsection (2) are not met if the lawful user –has readily available to him the information necessary to achieve the permitted objective;does not confine the decompiling to such acts as are necessary to achieve the permitted objective;supplies the information obtained by the decompiling to any person to whom it is not necessary to supply it in order to achieve the permitted objective; oruses the information to create a program which is substantially similar in its expression to the program decompiled or to do any act restricted by copyright.

The issue to consider is whether B can recreate A’s work not by relying on A’s work but on the scene which inspired A’s work. So, if A creates a painting, or takes a photograph of a particular scene, can B himself paint or photograph the same scene in the knowledge of A’s earlier efforts? The general principle would seem to indicate that the only restriction on B is the copying of A’s work itself, so that B is free to create a fresh work using the same subject matter, although too close a similarity might give rise to problems.