Illustration for Instruction and the UK Higher Education Sector

Chris writes: In this post I summarise the findings from my masters research which I’m currently developing into a journal article.

As most UK-based copyright geeks will know, 2014 saw a range of copyright exceptions implemented into UK law. These were designed to provide those in education and cultural heritage organisations with greater flexibility to use copyright material by expanding the existing “permitted acts” to cover digital uses and all types of copyright work. But ever since these changes took place I observed a considerable amount of uncertainty around how these should be interpreted by people teaching and studying in educational establishments. This is the story of my journey so far in trying to understand how these exceptions have been and might be used to support teachers and students.

Although I have been working with copyright for many years I decided to undertake a diploma in copyright law at King’s College London in 2017 to consolidate my knowledge and get some experience of formal postgraduate study. It was a fascinating course and whilst challenging I would recommend it to anyone in my position. However, despite how detailed and thorough the course curriculum was I realised that it hadn’t really answered my questions about copyright exceptions in education. It was these unanswered questions that led me to decide to continue to doing a masters in copyright that would focus on how educational exceptions had been interpreted by those in UK universities.

My masters dissertation (Illustration for Instruction and the UK Higher Education Sector – available on the Kent Academic Repository) reports on the research I did to understand what the scope of illustration for instruction (section 32 of the Copyright, Designs and Patents Act 1988) might be and how that aligned with the interpretation of copyright specialists in UK universities. After checking whether there was any existing academic commentary on the scope of illustration for instruction (there was a lot but nothing substantive written since 2014) I did my own close reading of the legislation and other sources of law such as court case judgements and government consultation documents. I built up a picture of the things I felt I could say for certain by reading the sources of law (not much) and those things that were questionable (quite a bit). I then drew up a set of open questions for my interviewees to find out how they interpreted the provisions of the law and how their interpretations were reflected in policy, guidance and practice. I found this process challenging because these are issues that I have strong opinions on, but the research required me to understand my interviewees’ experience rather than getting them to react to my thoughts on the subject.

My findings revealed that interpretation of copyright exceptions in education is complicated by the lack of certainty in the law and the detailed and sometimes contentious nature of the subject matter. In practice the requirements of section 32 such as the fact that the educational activity be “non-commercial” in nature, or that the use be for the “sole purpose” of illustration for instruction, cause concerns for those advising colleagues. For example a number of my interviewees were unsure whether the exception would apply when presenting at an academic conference because the delegates had to pay a conference fee. I also found that the concept of fair dealing was seen as “murky” and difficult to understand in an educational context, with much of the case law focusing on broadcast and journalism examples.

I identified that organisational and cultural practices within universities had a big impact on the way messages about copyright were perceived, with it often being regarded as a matter for the library to address. This led to some interesting findings about the way that responsibility for making decisions around the use of copyright content was understood and reflected in everyday activity and in formal documentation. Interviewees acknowledged the use of copyright material presented a risk to the institution, but they were not always sure that the risk was being adequately managed. Despite the challenges in interpreting and communicating educational copyright exceptions I found some examples of good practice where institutions had put time and effort into creating policy positions and comprehensive guidance. However, this was not consistent across the sector with some institutions finding this was still highly challenging.

In my analysis of the legal reform I argued that the introduction of fair dealing for the sole purpose of illustration for instruction had shifted the domain of educational exceptions from being a rules-based system (one where the difference between a legal and illegal act is clearly delineated in the legislation) towards more of a standards-based system where subsequent activity and legal action will define the law. The effect of this was to pass the cost of determining the law from the law makers on to those trying to work within its boundaries. However, I acknowledged that there were benefits to those in education in having a more standards-based system which was mentioned by a number of my interviewees who referred to the flexibility provided by fair dealing. I also identified the tensions within academia which make discussion about copyright difficult – for example, its complexity, the competing demands for academic and management attention and emotive issues over ownership and control of intellectual outputs.

However, despite these challenges I was pleased to be able to point towards some constructive suggestions to build on the good work I had uncovered and improve matters within the sector. My final recommendation was that the sector should create their own codes of best practice to set out their own interpretations of fair dealing based on what teachers and students currently do. This could be based on the work carried out in the US by academics Peter Jaszi and Patricia Aufderheide who have created a number of guides for communities to interpret fair use (the US equivalent of fair dealing). Since completing my masters I have been exploring the possibility of doing this, so anyone interested should subscribe to this blog where I and Jane Secker will share further developments in making sense of copyright for education practitioners.

A version of this blog post was originally published in the December 2019 edition of the CITE magazine, which is published by the CLA.