Quotation Exemption and Film

[Stumpy]

I was hoping to be able use around 8 secs of a 9 minute archive film in a YouTube video. The film has a copyright holder, but I intend to use the quotation exemption as I believe it covers film. I will credit the film appropriately and am only using as much as is reasonable. However, I see the exemption needs to be considered in relation to Fair Dealing and I am unsure if I will fall foul of the commercial restriction:

"Does using the work affect the market for the original work? If a use of a work acts as a substitute for it, causing the owner to lose revenue, then it is not likely to be fair"

Given that the footage can be licensed via the rights holder am I denying them revenue if I use the clip? If so, I guess the quotation exemption doesn't give me much of a defence, or am I reading the passage too literally?

[AndyJ]

Hi Stumpy,

The general presumption* is that the quotation exception can cover films, but we don't know for certain as it was only introduced in 2014 and there haven't been any court cases to test the boundaries during the 7 years of its existence. There is no explicit prohibition in the statute on using the quotation fair dealing exception just because it might possibly have some commercial impact on the original work. It is just a factor which the court may take into account, but clearly 8 seconds out of 9 minutes is a trivial amount. If you wanted to use 8 minutes out the 9, then that would be utterly different. I think the biggest risk you face is that if the copyright owner is upset by your use, he will just DMCA your whole video or seek to highjack the ad revenue from it.


* See subsection (2) of section 28.