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9 min readWhat is fair dealing under UK law?
Fair dealing is not a general defence of “fairness” — it is a set of defined statutory exceptions in the Copyright, Designs and Patents Act 1988 (CDPA). Unlike the US fair use doctrine, UK fair dealing applies only within specific permitted purposes. If your use does not fall within one of those categories, fair dealing cannot help you, however reasonable your use might seem.
- The CDPA exceptions most relevant to journalists are found in ss.29–31: research and private study, criticism and review, quotation, reporting current events, and parody.
- The international three-step test underlies the exceptions: the use must fall within a special case, not conflict with normal exploitation, and not unreasonably prejudice the legitimate interests of the rights-holder.
- Sufficient acknowledgement — crediting the source and author — is required for most fair dealing exceptions unless impracticable.
- The substantiality test: copying even a small but important part of a work can infringe; what matters is qualitative as well as quantitative significance.
- Fair dealing is assessed objectively — the question is whether a fair-minded person engaged in the same purpose would have taken the same amount.
Criticism and review (s.30(1))
Section 30(1) CDPA 1988 permits fair dealing with a work for the purpose of criticism or review — of that work or of another work. The criticism or review must be genuine; the exception does not provide cover for reproducing a work under the pretext of reviewing it while the real purpose is something else.
“Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement”
- The work being criticised or reviewed must have been made available to the public — you cannot rely on this exception to be first to publish an unreleased work.
- Sufficient acknowledgement of the work and its author is required.
- The amount reproduced must be no more than is justified for the critical or review purpose.
- Criticism of the ideas expressed in a work — not just the work itself — may qualify, provided the purpose is genuine.
- Using a quotation or extract as a pretext to reproduce content commercially will not qualify as criticism or review.
Quotation (s.30(1ZA))
Section 30(1ZA) was inserted by the Enterprise and Regulatory Reform Act 2013 to implement the InfoSoc Directive's quotation exception. Unlike criticism and review, the quotation exception does not require that the purpose be criticism — it simply requires that the quotation is to the extent justified by the purpose for which it is used.
No criticism required
You can quote to illustrate a point, provide context, or support a factual assertion — the purpose need not be critical or evaluative.
Extent must be justified
The amount quoted must not exceed what is needed for the purpose. Reproduce only the portion that is actually relevant to your article.
Work must be available
The work must have been made available to the public. This mirrors the criticism and review requirement.
Acknowledgement required
Sufficient acknowledgement — identifying the work and its author — is required unless this is impracticable.
Reporting current events (s.30(2))
Section 30(2) CDPA 1988 permits fair dealing with a work (other than a photograph) for the purpose of reporting current events, provided sufficient acknowledgement is given (except where this is impracticable by reason of the use).
- Photographs are explicitly excluded — you cannot rely on this exception to reproduce a photograph even when reporting a current news story.
- The event must be current: older stories may not qualify, and what counts as current is assessed contextually.
- The exception applies to the work being used in news reporting, not to the event being reported — you must be using copyrighted material to report the event, not just reporting an event that happens to involve copyrighted material.
- Sufficient acknowledgement is required where practicable — for broadcast and online news, crediting the source is standard practice.
- The amount reproduced must be fair — only what is necessary to illustrate the news point.
Song lyrics and music
Song lyrics are literary works protected by copyright. Music is a separate musical work. Both can subsist independently of a sound recording. Lyrics attract a high per-word value because a small portion of a song may represent a substantial portion of the work. There is no specific “lyrics exception” in UK copyright law.
- Even brief quotations — a single line or chorus — may be a substantial reproduction if those lines are iconic or commercially significant.
- The criticism and review exception may apply where you are genuinely analysing the lyrics as a work, with proper acknowledgement.
- The quotation exception (s.30(1ZA)) may cover a very brief extract to illustrate a factual point, but the amount must be the minimum necessary.
- The reporting current events exception does not cover literary works in the same way — and the substantiality of even a few lines makes it risky.
- For anything beyond a very brief illustrative quote in genuine criticism, obtain clearance from the publisher and/or collecting society (PRS for Music, MCPS) or take legal advice.
Photographs of artworks in galleries
Section 62 CDPA 1988 provides that copyright is not infringed by making a graphic work, photograph, film, or broadcast of a building, sculpture, model for a building, or work of artistic craftsmanship if it is permanently situated in a public place or in premises open to the public. This exception is narrower than it appears.
- s.62 covers buildings, sculptures, and works of artistic craftsmanship permanently situated in public — it does not cover paintings, drawings, or prints hung in gallery rooms.
- A painting in a gallery is not “permanently situated” for the purposes of s.62 — it can be moved, loaned, or sold.
- Gallery terms and conditions often prohibit photography regardless of copyright status; breach of those terms is a contractual matter, not a copyright one, but can result in removal.
- A photograph you take of a painting may itself attract copyright in the photograph — but that does not resolve the copyright in the underlying painting.
- Reproducing an image of a painting in a news article requires either a licence from the rights-holder, a fair dealing defence, or confirmation that the work is out of copyright (70 years after the author's death in the UK).
Leaked documents
Copyright subsists in original literary works — including internal memos, reports, emails, and policy documents — regardless of how those documents were obtained. Receiving a leaked document does not transfer copyright, and the means of obtaining it does not extinguish the rights-holder's copyright.
- The fair dealing exceptions for criticism, review, and quotation apply to leaked documents in principle — the public interest of the subject matter strengthens the case for fair dealing.
- In Lion Laboratories v Evans [1985] QB 526, the Court of Appeal held that publication of confidential breathalyser calibration documents was justified in the public interest; but this was decided as a confidence case, not copyright.
- Copyright and confidence are separate causes of action — a public interest defence in confidence does not automatically provide a copyright defence.
- Where publication is clearly in the public interest, courts have refused to grant injunctions to prevent publication of leaked documents; copyright liability may nonetheless remain in theory.
- Reproduce only what is necessary to make the journalistic point — extensive reproduction of a leaked document, beyond what reporting requires, weakens any fair dealing argument.
Screenshotted social media
Copyright subsists in original literary works and photographs posted to social media platforms, including tweets, posts, and images. The platform's terms of service grant a licence to share content on the platform — they do not grant a licence to republish that content in press articles or other media.
- A screenshot reproduces the work — it is not the same as embedding, which serves the content from the original platform.
- Copyright in a tweet or post belongs to the author, not the platform. The platform's terms grant the platform a broad licence, but not you.
- The reporting current events exception (s.30(2)) may cover brief quotation of a public post to report on something the author said, with acknowledgement — but photographs are excluded.
- Embedding via the platform's embed code is lower risk: the content is served from the platform, not reproduced by you, and the author can remove it. But UK courts have not definitively resolved whether embedding amounts to infringement.
- If the post or image is newsworthy and you must reproduce it, rely on the minimum necessary for the reporting purpose and credit the author.