Fair dealing v fair use
UK copyright law contains a number of ‘fair dealing’ exceptions that give third parties limited rights to use a copyright work for certain defined purposes without the copyright owner’s consent. Examples include fair dealing for criticism and review, fair dealing for news reporting and fair dealing for research. These are not to be confused with the US concept of ‘fair use’, which is much more flexible and can be applied in a wide range of situations.
Non-commercial purposes only
The fair dealing exception for research[i] is potentially very important for scientific research. It applies to, among other things, journal articles and other publications. However, it is limited to research for non-commercial purposes. The question of what constitutes a non-commercial purpose is determined by the nature of the research rather than the organisation. So, for example, a not-for-profit organisation may not be able to rely on the exception if the research is in connection with a fund-raising project that involves a commercial activity. An assessment of whether ‘fair dealing’ applies will always be fact-specific, but a narrow approach is also required. Making multiple copies or distributing the work to others would not normally fall within the exception.
Text and data analysis
A further research-related exception covering text and data mining was introduced following the Hargreaves Review in 2011[ii]. However, this exception also only applies to non-commercial research. In addition, the person carrying out the data analysis must have lawful access to the work. Usually, this means either that the work must be publically available or there must be a relevant licence in place. In response to evidence that data mining was often excluded in licences, a provision was included making terms excluding the fair dealing exception unenforceable.
Data mining exceptions in the Digital Copyright Directive will not apply in the UK
In an attempt to harmonise the position on data mining across Europe, the EU Digital Copyright Directive (EU/2019/790) introduces into EU law two mandatory data mining exceptions. Again, however, the first of these will be limited to not-for-profit research. The second will be more generally available, but copyright holders will be permitted to contract out of the exception by reserving their rights in the licence. The UK Government recently confirmed that it would not be implementing this Directive into UK law so these exceptions will not apply in the UK, although UK researchers will still be able to benefit from them in respect of EU27 and European Economic Area countries.
As can be seen from the above, current UK research and data mining exceptions are of limited value in a commercial context because they are limited to research for non-commercial purposes. In the context of Brexit it is interesting to note that the limitation to non-commercial purposes was introduced into UK law from 31 October 2003 in response to the EU Copyright Directive (2001/29/EC). Prior to this, the exception was available more generally. The question arises whether the UK may at some point reverse this and make a research and/or data mining exception available to business more generally again.