Copyright is a complicated thing. Members of the HEMA community participate in an activity that is inextricably linked with material that may well be copyrighted in some fashion, and therefore it is helpful to understand what copyright is and how it works, so that we can talk about it intelligently and avoid falling into any awkward legal situations.
What are the concepts of copyright and public domain?
As we discussed in part 1 of this series, copyright is the right to copy a work once it has been created. Whenever you create something, whether it is a painting or a photograph or a piece of music or a piece of writing, you have copyright over that piece of work. This gives you the legal right to copy it as much as you want, while prohibiting anyone else from copying it without your permission.
As we discussed in part 2 of this series, a work is considered to be in the “public domain” and therefore free from any copyright restrictions once a certain amount of time has passed. This means that anyone can make distribute copies of the work for any reason.
What is fair use (or fair dealing) and what are the limitations?
The concept of “fair use” is found within United States copyright law. In UK law, we have the concept of “fair dealing”, and it is a much more restrictive concept. However, most people tend to think of the concept by the American name; it is important to realise that “fair use” doesn’t exist in the UK (at least, not since 1911!) and that the similar concept is still quite different!
Under United States law, the concept of “fair use” sets out four factors to use when considering whether or not creating a copy of a work falls under “fair use” or not:
- the purpose and character of your use
- the nature of the copyrighted work
- the amount and substantiality of the portion taken, and
- the effect of the use upon the potential market.
This makes the United States approach quite subjective, quite dependent on how you go about making your copy, and (strikingly) quite variable, based on factors that are outside of both your and the copyright-holder’s control, such as the overall value of the copyrighted work based on market conditions that may shift from one time to another. One person copying a scan of a historical source might find that their copy counts as fair use, whereas another person making a similar copy of the same historical source might find that their attempt does not count as fair use, due to the situational nature of the tests.
In the UK, there are just three, quite objective types of situations where using a portion of a copyrighted work may be reasonable as “fair dealing”:
- Research and private study. It may not be for any commercial purpose whatsoever, or have any likelihood of becoming commercial in the future. It must also still utilise only a “fair” portion of the copyrighted material.
- Criticism, review, and “other”. The copyrighted material must have been available to the wider public in general, the usage must be “fair”, and the original author must be acknowledged properly. To be considered “fair”, the courts would consider how much of the copyrighted work has been used, the method by which is was acquired, and the consequences of the review or criticism. The “other” category is not particularly defined, and is there to allow for additional defences, should the copyright infringer be able to demonstrate a sufficiently good defence for fair dealing.
- Reporting of current events. The event must still be considered current, the original author must be acknowledged as properly as possible, and the amount of copyrighted material must still be considered “fair”.
In the UK, two people making similar copies of the same historical source material are both likely to find that their copying counts as fair dealing, or they are both likely to find that it does not. The test in the UK is much less subjective in terms of how you mean to use the copy, and much more objective in that only copies made for quite tightly defined purposes count as “fair dealing”.
This means that the UK and the United States have quite different approaches to understanding and testing the concept of “fair use” or “fair dealing”.
Even though there are considerations set out for the American concept of fair use and for the British concept of fair dealing, you still have to apply some good common sense. The more of a copyrighted work you copy, the less “fair” the copying. The less credit you give, the less “fair” the copying. Using it in a commercial fashion (or denying the copyright holder the income from their own distribution of their own work), the less “fair” the copying.
Conversely, if you just use a small quote from a published work, and give due credit for it, you are probably fine. (Of course, the concept of “being fine” in the end is a bit fuzzy and not quite like real life. How able and willing are you to fight a lawsuit if one is brought against you for copying material without permission? Theoretically, you might be “fine” in the end, but if you can’t afford to fight the lawsuit, then you are probably not going to be “fine” right now.)
The purpose of this article has been to show that the UK and United States have a different concept of “fairness” when it comes to copyright law, and that you cannot just claim “fair use for educational purposes” whenever you copy outright and distribute something that probably should not be copied or distributed.
Thanks and disclaimer
I would like to thank Brian Puckett for his input on this from the United States perspective, and for general proofreading and suggested edits. The article is much stronger for his input!
I am not a lawyer specialising in copyright legislation (and neither is Brian), and this article should not be considered formal legal advice. Instead, this article covers certain general legal information that is not necessarily applicable to any specific legal matter. It is intended to be an introduction to the ideas of copyright and how they may apply to the community – no more than that.
Copyright and “fair use” in the USA:
Copyright and “fair dealing” in the UK:
Keith Farrell teaches HEMA professionally, often at international events (why not hire me to teach at your event?), and has an interest in coaching instructors to become better teachers. I teach regularly at Liverpool HEMA, and help behind the scenes with running HEMA in Glasgow at the Vanguard Centre.