This Guide represents the consensus views of a Working Party that was set up by the Joint Information Systems Committee (JISC) and the Publishers Association (PA) between 1996 and 1998. It has been endorsed by both the JISC and the PA. It provides advice on the application of the fair dealing and library privilege permissions in the Copyright Designs and Patents Act (CDPA) and associated Statutory Instruments to activities in Higher Education that involve the creation or use of electronic materials. The Guide deals primarily with research or private study copying of Literary Works and makes no attempt to cover Artistic Works. In essence, the Guide provides advice on what activities JISC and the PA agree constitute fair dealing, and therefore requiring no permission, and what activities they agree do not constitute fair dealing and therefore requiring permission from the copyright owner before carrying out such activities. Some activities are not mentioned at all; they represent "grey areas" where the law is unclear, and readers wishing to undertake activities not mentioned in this Guide are urged to take professional legal advice. This Guide should be used as a pointer towards good practice. While every care has been taken in preparing this Guide, the authors and publishers do not accept responsibility for any omissions or inaccuracies that may have occurred.
The Guide only applies to UK law. You should consult a copyright expert if you plan to use electronic materials outside the UK.
New or revised editions of the Guide will be published by the JISC and PA as the need arises.
In this document, the following working definitions have been used:
Electronic format
Examples of textual materials in "electronic format" would include word processed documents (for example Word, WordPerfect, LaTex), the output of databases and spreadsheets, HTML & SGML documents, and documents stored in proprietary formats for use with proprietary readers (for example pdf files for use with Adobe Acrobat).
Electronic publication
This includes either publications created specifically in electronic format, or publications originally created in paper format and then later transferred to electronic format under conditions of conformity with copyright law.
Part of an electronic publication
The existing library privilege model for determining "part of" a paper publication, i.e. one article from a journal issue, one chapter from a book, or 10% of other works, is used, with the proviso that this might require revision in the future if there were significant changes in existing publication practice, for example where an issue of an electronic journal comprised one article, or where the "journal" or "book" format no longer applied.
Issue
The term "issue" as applied to an electronic journal is analogous to an issue of a printed journal, that is a collection of articles issued at the same time under an issue number. This definition will be kept under review, as publication practices involving works on digital media will change over time. For example, the traditional practice in academic journals produced in the print medium, of publishing discrete parts of such journals each year, might well be replaced in the digital medium by publication of material (articles, reviews, etc.) as and when it became available. This would rapidly erode the viability of applying even the existing library privilege model for determining "part of" a paper publication, that is that one article from a journal issue, one chapter from a book, or 10% of other works, can be used.
Fair dealing
The terms "fair dealing" and "library privilege" are clearly distinguished in the Copyright Act. For the purposes of simplicity in this Guide, however, we use the term "fair dealing" throughout and mean by that term any copying activity that is permitted under the terms of the Act not to require permission from, or to pay fees to the copyright owner, irrespective of which Clause of the Act specifically applies. We are not suggesting that library privilege is in law the same as fair dealing, and have adopted this convention purely for convenience and simplicity.
Where the Guide states that a type of copying is fair dealing, readers should note that the following caveats always apply:
* Purpose: The purpose of the copying must be for research or private study of individuals, for reporting current events, or for criticism or review. The purpose may not be other purposes, such as for commercial exploitation, whether direct or indirect. If you wish to copy for teaching purposes, you should obtain legal advice (it may, for example, be allowed under the database part of the law - see above under "Fair Dealing"), or check the terms of any licences your institution may have.
* Quantity: Only single copies are permitted. Multiple copying always requires permission.
* Further Copying: Where the making of one original copy (paper or electronic) is considered fair dealing, the making of subsequent copies (paper or electronic) from that original is not.
* Education: This Guide has been prepared with the activities of higher education in mind. Individuals and librarians working in non-education sectors should not assume the Guide's advice applies to them. Indeed, in some cases, such as copying databases, the advice given in this Guide is clearly inappropriate if acted upon by a commercial organisation.
* Abstracts: Readers should take legal advice if they intend to create and distribute abstracts based on copyright materials.
* Multimedia materials: Our comments refer to publications that are either all text, or are primarily text. Multimedia materials raise many complex copyright problems, and actions that are fair dealing for print may not be fair dealing with multimedia. You should take legal advice if you plan to copy multimedia materials.
* Lawful copy: We have assumed throughout that the material that is being copied has been obtained lawfully, for example the material is readily available on the Internet, the library has a subscription to the particular electronic journal or database, or print material has been digitised with the permission of the copyright owner. The concern of this Guide is what you can then do with that lawfully obtained material. Copying unlawfully obtained material is not legal.
Any incidental copying to disk involved in the viewing of part or all of an electronic publication is fair dealing.
The operation of some computer software, for example Web browsers, may result in the copying of electronic documents to the user's hard disk. Where this is necessary for the efficient operation of the software, and where there is no intent to store the copy permanently, this incidental copying is fair dealing. This would apply for viewing part of, or the whole of an electronic publication.
Scenarios
Copying by an Individual:
Joe accesses an electronic journal available on a Web site using the PC in his office. The browser automatically copies the article to his hard disk cache when he views the article. This is fair dealing.
Joe views all of the articles of an electronic journal available on the Web using his browser. The browser automatically copies all the articles to his hard disk cache as he views them. This is fair dealing.
Joe logs into his university/library network and accesses an electronic journal. The browser automatically copies all the articles he views to the network cache. This is fair dealing.
Copying by a Librarian:
The librarian is preparing to print out an article for Joe that he has requested from an electronic journal. To check that it is the right article, the librarian views it on screen. The article is in PDF format and Acrobat copies the article to the library network cache. This is fair dealing.
It is fair dealing for an individual to print onto paper one copy of part of an electronic publication.
It is fair dealing for a librarian to print onto paper one copy of part of an electronic publication at the request of an individual.
Scenarios
Copying by an Individual:
Joe accesses an electronic journal available at a Web site using the PC in his office. He can print out a hard copy of an article for research or private study. This is fair dealing.
Joe visits his library and accesses an electronic journal available at a Web site using an open access PC. He can print out a hard copy of an article for research or private study. This is fair dealing.
Joe logs into his library/university network and accesses an electronic journal available at a Web site. He can print out a hard copy of an article for research or private study. This is fair dealing.
Joe visits his library and accesses an electronic journal to which the library has a paid subscription, using an open access PC. He can print out a hard copy of the article for research or private study, assuming this is allowed by the licence agreement[1]. This is fair dealing.
Joe logs into his library/university network and accesses an electronic journal for which the library has a paid subscription. He can print out a hard copy of the article for research or private study, assuming this is allowed by the licence agreement[2]. This is fair dealing.
Joe knows of an electronic article, but does not have a PC (or cannot be bothered to use it). He can ask Frank to print out a copy for him. Frank makes a copy for Joe's research or private study. This is fair dealing. However, if Frank knows, or has reason to believe, that Joe intends to then make multiple copies of that copy for distribution to his friends, then Frank's actions are not fair dealing. [3]
Copying by a Librarian:
Joe knows of an electronic article on the Web, but does not have a PC (or cannot be bothered to use it). He can request the library to print out a copy for him for research or private study. This is fair dealing.
Joe knows of an electronic article in a publication to which the library has a paid subscription, but does not have a PC (or cannot be bothered to use it). He requests the library to print out a copy for him for research or private study, this being allowed by the licence agreement[4]. This is fair dealing.
Joe is going to a conference and wants something to read on the aeroplane. He asks the librarian to print out the whole of an electronic book. The librarian refuses, but offers to print out one chapter. Printing out one chapter is fair dealing.
It is fair dealing for an individual to copy onto disk part of an electronic publication for permanent local electronic storage, where the disk is either a portable medium, [5] or a fixed medium [6] accessible to only one user at a time.[7]
It is fair dealing for a librarian to copy onto disk part of an electronic publication for an individual at their request for permanent local electronic storage by the individual, where the disk is a portable medium[8].
Commentary
It is fair dealing for an individual to make a permanent electronic copy for the same purposes as making a paper copy: to refer to later as part of research or private study or for other permitted purposes. A librarian should also be able to make an electronic copy for the individual to take away. Making a printed copy and an electronic copy are considered analogous, the only difference being that the electronic copy may afford the user a higher degree of convenience.
Scenarios
Copying by an Individual:
Joe accesses an electronic journal available at a Web site using the PC in his office. He saves a copy of an article on his hard disk or a floppy disk for research or private study. This is fair dealing.
Joe visits his library and accesses an electronic journal available at a Web site using an open access PC. He saves an article to floppy disk and takes it away with him for research or private study. This is fair dealing.
Joe logs into his library/university network and accesses an electronic journal available at a Web site. He saves an article to his local hard disk for research or private study. This is fair dealing.
Joe visits his library and accesses an electronic journal to which the library has a paid subscription, using an open access PC. He saves a copy of the article to floppy disk and takes it away with him for research or private study, assuming this is allowed by the licence agreement[9]. This is fair dealing.
Joe logs into his library/university network and accesses an electronic journal for which the library has a paid subscription, and for which he is an authorised user. He can save an article to his local hard disk for research or private study, assuming this is allowed by the licence agreement[10] . This is fair dealing.
Joe knows of an electronic article, but does not have a PC (or cannot be bothered to use it). He can ask Frank to save a copy to disk for him. Frank does so, thus saving an article for someone else's research or private study. This is fair dealing. However, if Frank knows, or has reason to believe, that Joe intends to then make multiple copies of the electronic copy for distribution to his friends, then Frank's actions are not fair dealing.[11]
Joe wishes to quote from some electronic material in a paper he is writing. Assuming the quotation is for criticism or review, or for reporting current events, this is fair dealing so long as due acknowledgement of the original source is given by Joe.
Copying by a Librarian:
Joe knows of an electronic article on the Web, but does not have a PC (or cannot be bothered to use it). He requests the library to give him an electronic copy on floppy disk (instead of a printed copy) for research or private study. This is fair dealing.
Joe knows of an electronic article in a publication to which the library has a paid subscription, but does not have a PC (or cannot be bothered to use it). He can request the library to give him an electronic copy on floppy disk (instead of a printed copy) for research or private study, assuming this is allowed by the licence agreement[12]. This is fair dealing.
It is not fair dealing for an individual to copy onto disk all of an electronic publication for permanent local electronic storage.
It is not fair dealing for a librarian to copy onto disk all of an electronic publication for an individual at their request for permanent local electronic storage by the individual.
The purposeful copying to disk of entire electronic publications is not considered fair dealing. Permission is required, and licensing may be appropriate. However, the incidental copying to disk involved in viewing as described in Section 1 is fair dealing.
Scenarios
Copying by an Individual:
Joe wants to download an entire Web site to his PC. This is not fair dealing, and he should contact the owner of the Web site for permission. However, it is fair dealing for Joe to view all of the articles of an electronic publication even if Joe's Web browser or other software automatically copies all the articles to his hard disk cache as he views them.
Joe wants to download an entire electronic journal to his PC. This is not fair dealing, and he should contact the copyright owner for permission.
Joe wants to download an issue of an electronic journal to his PC. This is a grey area and depends on whether an "issue" is meaningful in the context of the publication, and the substantiality in relation to the whole. This is not fair dealing except in exceptional circumstances. Joe should contact the copyright owner.
Copying by a Librarian:
Joe found an interesting set of conference proceedings on the Web. He asks the librarian to download a copy and put it on a disk so he can have a personal copy. The librarian refuses, as this is not fair dealing.
5. Transmission to Enable Printing - Part of an Electronic Publication
It is fair dealing for a librarian to transmit by computer network part of an electronic publication for the purpose of printing a single copy with only such interim electronic storage as is required to facilitate that printing.
Transmitting an electronic document for the sole purpose of printing out a single paper copy is fair dealing, as it has the same effect as Sections 1 and 2 above, even though the technical process is different. However, it is only fair dealing if the proper technical constraints to ensure that any permanent electronic copies are deleted following successful transmission and printing are in place. In addition, the transient copying on network equipment used to transfer the electronic document is fair dealing.
Until technology ensures that permanent copies are deleted automatically, publishers will doubtless require considerable reassurance that systems and procedures are implemented to ensure deletion. Librarians are in a position to make the guarantees that satisfy their concerns, so the guideline above applies only to transmission in the controlled environment of a library setting.
Individuals are unlikely to be in a position to make the guarantees necessary to satisfy publishers' concerns. However, it is possible that with further advances in technology, individuals might be included at a later date.
Scenarios
Copying by a Librarian:
Joe's university has a multi-site campus. He is at one site and the library is at another. He requests a copy of an article from the library for research and private study, and the library sends him the article by fax. This is fair dealing.
The library is next door, but Joe is too lazy to walk there to get a copy of an article. The library sends him the article by fax. This is fair dealing.
Joe requests an article that his library does not have. His library contacts another, and they send the article by fax. This is fair dealing.
Joe requests an article that his library does not have. His library contacts another, and they send the article using Ariel or other PC-to-PC transmission software. This is fair dealing as long as both libraries delete the article after successful transmission and printing.
Joe asks the library to print a copy of an article from an electronic journal. The library prints out copies using a central university printer. The librarian transmits the article to the printer using the university network. The printing facility is set up so that print requests are logged in, the copies are checked for quality, and the printer automatically deletes the file when the print is logged out. This is fair dealing.
It is not fair dealing to transmit by computer network the whole of an electronic publication for the purpose of printing a single copy, even if only such interim electronic storage as is required to facilitate that printing takes place.
Permission (as specific permission or under the terms of a licence) would be required to transmit all of an electronic publication, whether an individual does the printing or a librarian does the printing for the individual.
Scenarios
Copying by an Individual
Joe is reading an interesting set of conference proceedings that is on a networked CD-ROM that the library purchased. He makes a print request to have all the articles printed out on the central university printer so he can read them at home. Then he gets a message that a print order for the entire publication cannot be accepted, as this is not fair dealing.
Copying by a Librarian
Joe's university has a multi-site campus. He is at one site and the library is at another. He wants a book urgently and asks the library to fax it. The library says no, as this would not be fair dealing, and suggests that he pays them a visit.
It is fair dealing for a librarian to transmit by computer network to an individual at their request part of an electronic publication for permanent local electronic storage, but not retransmission.
Guideline (3) above would allow the librarian to give the individual an electronic document on disk. This section allows the librarian to transmit it to the individual using a network instead. The effect is the same: the individual has the document to store locally and use. However, the individual may not retransmit it to anyone else.
Publishers may be concerned that this guideline might result in the de facto introduction of electronic coursepacks. Distribution of coursepacks is not fair dealing, as this would involve systematic copying. Site licences are recommended for distribution of coursepacks.
Scenarios
Copying by a Librarian
Joe requests a copy of an electronic article from his library for research or private study. The library transmits it to him by e mail. He can retain the copy on his PC as this is fair dealing.
Joe requests a copy of an article from his library for research or private study. It does not exist in electronic form. The library is unable to comply, as this would not be fair dealing; the library needs permission to scan the article into electronic form. The permission, if granted, would cover whether the library could retain a copy permanently.
It is not fair dealing to transmit by computer network of the whole of an electronic publication for the purpose of permanent local electronic storage, reading on screen, and printing on individual request, whether or not retransmission is involved.
Scenarios
Copying by an Individual:
Joe is reading an interesting set of conference proceedings that is on a networked CD-ROM that the library purchased. He makes a download request to have all the articles transferred to a re-writeable CD-ROM disk in a CD-ROM drive attached to his computer so he can keep and read them at home. Then he gets a message that a download order for the entire publication cannot be accepted, as this is not fair dealing.
Copying by a Librarian
Joe's university has five years missing from its holding of an important electronic journal, as the set was cancelled due to its cost. The journal is published on CD-ROM three times per year, and each publication contains a variety of articles, reviews and notes. Joe asks his subject librarian to obtain the missing parts from another university. The subject librarian requests that the holding library has all the articles transferred to a re-writeable CD-ROM disk in a CD-ROM drive attached to his computer so he can keep a permanent copy for future enquirers. The holding library says no, as this would not be fair dealing, and suggest that Joe and any future enquirers pay them a visit.
It is not fair dealing to post part or all of an electronic publication on a network or WEB site open to the public.
Clearly posting part or all of an electronic publication on a network, or WEB site open to the public, has a much wider purpose than the creation of a single copy for the purpose of individual's research or private study. It therefore falls outside the scope of fair dealing.
Scenarios
Joe wants to put one of his published articles up on his personal Web site. He may do so if he has retained the copyright in that work[13]. If he has assigned his rights, or granted an exclusive licence in that work to a third party, he can only do so if the copyright transfer form, or licence he has signed allows him this right, or if he contacts the publisher and obtains permission.
Joe wants to put an interesting group of journal articles up on the Department Web site for his colleagues to read. This is not fair dealing. He must get permission of the copyright owners first.
Joe wants to cut-and-paste portions of other Web sites into his own. This may or may not be fair dealing. He should check the copyright notice of these sites and see if it is allowed, and if necessary ask for permission.
Management of Copyright by Technology
The future viability of fair dealing in the electronic medium would be enhanced if administrative and technical methods for ensuring that copyright was not breached were both promoted and used. We recommend that the following principles be adopted:
Where the librarian makes a copy on behalf of an individual, the practice of having the individual sign a form indicating the copy is for research or private study should continue. Such a form might be paper-based, or electronic, if reliable authentication tools are in place.
The use of electronic watermarking might be used to help prevent further copying of a copy made under the fair dealing provisions. Recent developments in watermarking technology suggest that this might now be a viable option in combating breach of copyright.
Transient and disk cache copies of copyright material will be produced as a result of permissible electronic transmission of that material, particularly where the WEB and Web browsers are involved. Transient and disk cache copies of copyright material, being an inevitable result of the technology, cannot rationally be considered as a breach of copyright. However, this should not be permitted as an excuse to hold additional copies of material obtained under fair dealing. One way of tackling that problem would be to implement in the software, and in institutional policies, the automatic clearing out of caches after certain time-limits.
Where libraries scan and transmit copyright materials to each other under the fair dealing provisions, more than one copy of the material will exist at some stages of that process. This is an inevitable result of the technology, and so could not rationally be considered as a breach of copyright. However, for the process to fall within fair dealing there ought to be auto-deletion of all electronic copies, except the one to be used by the individual for personal research and study, at the end of the PC-to-PC transmission process.
Where material has been encrypted, and where the Guide indicates a particular activity is fair dealing, such activity shall still be considered fair dealing when the encrypted material has been decrypted.
Electronic Copyright Management Systems (ECMS) should not be employed in such a way to prevent users from undertaking the activities that this Guide has indicated are fair dealing.
Licence Agreements, Fair Dealing and Inter Library Loans
Some licences restrict fair dealing, for example where a licence agreement for an electronic publication states that copies of any part of the publication may only be made by, or for, members of the institution to which the publication is licensed. This would appear to strike at the heart of the Inter-Library Loan (ILL) system that is part of the library privilege. Another JISC/PA Working Party is developing ideas on document supply in the electronic environment, and readers are advised to consult any reports it issues.
Transient Copies
Transient, or disk cache, copies of parts of, or all of, an electronic publication, where such copies occur automatically as a result of a permissible electronic transaction, should not be considered a breach of copyright. This is subject to the proviso that deletion of such transient copies should take place as soon as possible after they are no longer required for the purposes of that permissible electronic transaction. The use of such transient copies to make further copies after the permitted electronic transaction is not fair dealing.
Images
Where an image is incidental to the textual material being copied[14], then any digital copying of such images is fair dealing. This applies to drawings, photographs and all other types of image. For fair dealing to apply, the image must be integral to, and integrated in the text - in other words it must support the text, not the other way around. Copying and transmitting an image, or a set of images, with little or no text associated with them is probably not fair dealing if carried out by an individual, and is certainly not part of library privilege. If you wish to do this, you should seek legal advice.
Braille and related materials
The creation of Braille, audio, large point size (on screen or in print) adaptations of copyright works or similar activities to make such works perceptible to readers with disabilities is fair dealing so long as the activity in question is described in this Guide as fair dealing - for example, converting a chapter of a printed book into Braille is fair dealing (see Sections 2 and 3), as is converting the chapter of an electronic book into Braille or audio. The conversion of, for example, an entire book or the entire issue of a journal into such forms would, however, fall under Section 4 and requires the permission of the copyright owner, or a licence. It is worth noting that the Royal National Institute for the Blind is lobbying for a change to the law so that Braille adaptations should be a legal right, and not a concession; if they are successful, such rights may be extended to people with other disabilities. If such changes in the law occur, we will revise this document accordingly.
Databases
Early in 1998, the UK implemented a revision to copyright law to implement a European Union Directive on databases. The revisions provide for protection for databases (defined as any collection of materials or data that is organised in a systematic manner). If the selection of materials, or organisation of the database involves original creative effort, the database itself enjoys copyright protection, and the usual ground rules for fair dealing apply. In addition, all databases, whether enjoying copyright or not, also receive a new database right that protects the maker of the database against unauthorised extraction or reutilisation. An exception to the database right allows copying "for the purposes of illustration for teaching or research, other than teaching or research for a commercial purpose, but only by a lawful user and subject to acknowledgement of source." These revisions to the law raise a number of important questions, such as: do the materials typically handled by those in academic institutions qualify as databases? In some cases, they clearly do, such as dictionaries, almanacs, encyclopaedias, abstracting and indexing services, and so on. It is not clear whether books or journals (whether print or electronic) will do so. Secondly, it is not clear how the term "illustration for teaching or research" will be interpreted. It could be interpreted very tightly, permitting copying solely for illustration purposes, or it could be interpreted as broadly as fair dealing has traditionally been treated. For the time being, the advice in this Guide applies to ALL types of materials, whether they form part of a database or not. This Guide will be revised from time to time, and amendments to it will be made where required
As can be seen from this Guide, the Working Party has agreed a practical definition of fair dealing of materials in electronic form. However, certain areas remain contentious, notably: electronic study packs; the increasing use of licences by publishers that purport to limit the usage that educational institutions and users can make of collections of electronic materials with regard to inter-library loans; and the future use of abstracts.
The whole area of fair dealing is presently the subject of much industry and academic debate, and there are many commercial and legislative initiatives. The JISC and the PA will continue to keep the area under scrutiny, and would welcome comments on this Guide in the light of new developments.
In other words, if the licence agreement specifically allows this, or if it is silent on the matter.
[2] See footnote 1 above.
[3] S29(3)(b) CDPA 1988.
[4] See footnote 1 above.
[5] Such as a 3.5" floppy disk, an optical disk, tape cassette or WORM CD-ROM. This definition should not be seen as either definitive or exhaustive.
[6] Such as the hard disk drive of a computer. This definition should not be seen as either definitive or exhaustive.
[7] For fair dealing to exist in this category the storage medium should not be network accessible, that is the computer in which the hard disk on which the publication is stored may have a network connection, but the computer's own hard disk should not be accessible to that network.
[8] Such as a 3.5" floppy disk, an optical disk, tape cassette or WORM CD-ROM. This definition should not be seen as either definitive or exhaustive.
[9] See note 1 above.
[10] See note 1 above.
[11] See note 3 above.
[12] See note 1 above.
[13] Clearly, fair dealing issues do not arise when copying material that is your own copyright; they only arise when copying materials whose copyright is owned by a third party.
[14] For example, one, or a small number of image(s) within an article or a book chapter.