Criticism and review in higher education: here be dragons?

Mark Summers
© Den Denyer

This week’s guest post comes from Mark Summers, who was copyright officer at a UK university for a number of years, before leaving to undertake a PhD (in music). He has a PGDip in copyright law from Kings College London (KCL). This post comes in two parts: the first is theoretical, outlining Mark’s view of fair dealing for the purposes of criticism and review; the second will be more practical, looking at the question of post-exam etheses.

Part one: a pragmatic view of the criticism/review legislative permission.
My time as copyright officer was spent giving advice and training, all the time trying to help members of the university to think about copyright in a helpful way – helpful to both themselves and the university – rather than talking abstract law at them and hoping something would stick. I spent the first 2 years doing the KCL copyright course, meaning that my knowledge of the law grew as I settled into the job. One big effect of this was that I was questioning my practice on a daily basis, and as a result I changed my views and advice, especially in the key area of fair dealing for criticism and review.

In a nutshell
We can be too self-restrictive in our view of what we can and cannot do with copyright materials in UK academia. In my opinion, if we are writing in a suitably academic way (smallest quotation necessary, properly cited) then we are covered by the permissions given to us in law.

What are we talking about here?
Copyright is a monopoly that was originally designed to encourage authors to publish, but not a total monopoly. As it stands now, there are important limitations that go a long way towards stopping that monopoly being abused by copyright owners (otherwise the rights granted in law could stop any copying/further use that is not directly authorised by the owners). Here, I am particularly interested in the monopoly limitation that allows for an easy back and forth between authors, namely fair dealing for the purposes of criticism and review.

(You may have noted that I didn’t call it the criticism/review ‘exception’ or even ‘defence’, but “legislative permission” and “monopoly limitation”. Criticism/review is there for us as (re)users, it gives us permission to quote other people’s work, and it limits copyright owners’ ability to stop us when our use is fair. This is our law, and it isn’t something to be afraid of.)

That’s all very well, but surely thinking we can use anything we like is risky?
Sure, there be dragons, but are they as real or as big as the map suggests?

Dragon
© Mark Summers, (after Ebstorf Map c.1450 – see https://en.wikipedia.org/wiki/Ebstorf_Map#/media/File:Ebstorfer-stich2.jpg)

That’s a bit Tolkien – please explain.
Copyright can be daunting. A lot of information/definitions that would be useful in practice are absent from the legislation. Take “substantial part”.

When providing training, there is often much talk of substantiality right at the beginning, the first decision you have to make. However, we can just ignore this question by assuming that whatever you are going to do is indeed using a substantial part of the copyright work(s) (one judge said that we make it substantial because we consider it worth copying). Poof! First dragon gone.

The second, bigger dragon is whether our use of the copyright work(s) is covered by legislation, or whether we have to get permission from the copyright owner – whether it is fair dealing. Two big, dragon-y words. We know that ‘dealing’ more or less means ‘using’, but ‘fair’ is much trickier. Legislation is no help, and case law can be somewhat impenetrable.

A couple of things to note are that fair dealing provisions:
1)  are general, but some only apply to certain types of work (eg. you cannot freely use a photograph to report current events)
2) only apply to approved purposes (research, criticism, review, etc.)

However, the purposes we are talking about here, criticism and review, are approved purposes and apply to all types of work. Which is good.

When using other authors’ work in academic work, we are used to writing in a particular way. We take existing literature, we might give a general overview of an argument, perhaps directly quote it, then discuss it, probably pointing out the good and bad bits as we see them, or just using it as evidence in support of another argument we are making. We would normally quote only the minimum we need to make a point (otherwise the manuscript probably comes back with “excessive quotation” in red), and we put in a citation to acknowledge the author(s) and to allow others to find our source.

We can see the principles of minimal quotation and suitable acknowledgement now written into the law as Section 30 (1ZA). This should give us confidence.

When thinking about what to include without asking permission, we could cower and offer up the human sacrifices that we think are demanded of us by the dragons (I suspect that many of us do). However, my big question is whether we need to or not. The nature of academic writing is such that we use the minimum, we cite the source – my opinion is that when we do it properly, it is almost certainly covered by criticism / review.

And that’s just the legislation.

Some helpful case law
We have a powerful anti-dragon spell given to us in the case of Pro Sieben v. Carlton. The judgement in this case tells us that we do not have to directly criticise or review a particular copyright work to be able to use it as an illustration of the type of thing that we are criticising/reviewing. Pretty useful.

A better question then?
We need to check whether the dragons are real or if we are imagining them. In conclusion then, the question that I keep coming back to (and which prompted this post) is this:

When does the law NOT give us permission when using copyright works in a proper academic context?

[Disclaimer: I make no warrant that the dragons do not exist. In a similar vein, this is opinion, not legal advice. If you want to be pretty certain, get advice from a qualified solicitor or barrister. If you want to be absolutely certain, bring a case that goes all the way to the Supreme Court.]

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