Fair dealing usage of image in scholarly publication

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Fair dealing usage of image in scholarly publication

Post by aggy_b »


I'm looking for some advice on the following situation - is it fair use / fair dealing if someone wants to use a copyrighted image in a scholarly publication, which is a book with a printrun under 1000 copies?

The book will be sold - thus I'm thinking commercial use?

Any advice would be greatly appreciated.

Many thanks
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Re: Fair dealing usage of image in scholarly publication

Post by AndyJ »

Hi aggy_b,

A lot depends on the context in which the picture is needed. If it is in connection with criticism of either the photograph itself or another copyright work with which the photograph is closely linked (say a still from a film where the oeuvre of a film director was being examined) then that might qualify under section 30 as fair dealing provided that the author of the photograph is credited. But apart from that particular sort of use, it is not likely that fair dealing will apply. One of the reasons for this is that, generally speaking, fair dealing requires that no more of the copyright work is used than is absolutely necessary for the purpose (for instance, if the quotation exception is being relied on), but invariably it is necessary to use the whole of a photograph, which tends to count against the spirit of fair dealing.

Although there are exceptions for certain educational uses, it is unlikely that any of them would apply just because a work was scholarly in nature. In the main the educational exceptions apply to the use of literary, dramatic or musical works (but not artistic works) within educational establishments in a non-commercial setting.

The exception for the purposes of research (section 29) might have applied if that is actually why the image was being used and the use was in, say, a learned journal, but the fact that the scholastic work is to be published in book form would as, you have noted, run up against the limitation that such use must be non-commercial.

The size of the print run doesn't have any bearing of the issue of fair dealing, but it might be relevant if you decide you need to get a licence to use the photograph.

Last Summer, the Court of Justice of the European Union had to decide on a case with some of the same features as your question and effectively they ruled that using a photograph without permission where the use was not covered by any of the exceptions set out in the various EU Copyright Directives, would amount to an unauthorised communication of the work to the public. The case was known as Renckhoff and you can read the Court's decision here.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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