The quotation exception in educational and scholarly contexts
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The quotation exception allows for use of copyrighted works without permission under certain conditions. It was introduced into UK law in 2014 and is broader than traditionally understood. Recent CJEU rulings have interpreted the scope of quotation to include use of entire works if needed for the purpose and in accordance with fair practice. Quotation could benefit cultural and education institutions by allowing greater expressive use of works, though unpublished works and commercial education uses may be more limited.
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The quotation exception in educational and scholarly contexts
- 1. The quotation exception in educational and cultural heritage contexts CILIP Conference 18 May 2022 Prof. Tanya Aplin
- 2. What is the quotation exception? ⢠Internationally mandated copyright exception: Art. 10(1) Berne Convention ⢠In the UK, see s. 30(1ZA) CDPA 1988, introduced in 2014: âCopyright in a work is not infringed by the use of quotation from the work (whether for criticism or review or otherwise) provided that- (a) the work has been made available to the public, (b) the use of the quotation is fair dealing with the work, (c) the extent of the quotation is no more than is required by the specific purpose for which it is used, and (d) the quotation is accompanied by a sufficient acknowledgment (unless this would be impossible for reasons of practicality or otherwise).
- 3. Potential of the quotation exception ⢠Aplin & Bently in Global Mandatory Fair Use (CUP, 2020) argue that the quotation exception in Art. 10(1) Berne mandates a broader and more powerful exception than hitherto has been appreciated. ⢠Emily Hudson in Drafting Copyright Exceptions (CUP, 2020), 280 observes that although UK libraries and cultural institutions were âstill finding their way in relation to quotationâŚinterviewees did not view section 30(1ZA) as technical and unknowable, or as limited to the paradigmatic example of short snippets of literary content in quotation marksâ and that âthe breadth of the drafting was praisedâ.
- 4. Judicial interpretation of the quotation exception ⢠Trio of CJEU rulings have articulated the scope of the quotation exception in EU copyright law (Art 5(3)(d) InfoSoc Dir. 2001/29/EC) ⢠C-476/17 Pelham (could samples of sound recordings inserted in new recording be quotation?) ⢠C-516/17 Spiegel On-line (could the posting of an article and linking to it be quotation?) ⢠C-469/17 Funke Median (what is the latitude for national implementation of EU copyright exceptions and the role of fundamental rights?) ⢠Rulings are still relevant post-Brexit (see LJ Arnold in TuneIn v Warner Music UK Ltd [2021] EWCA Civ 441, [73] et seq)
- 5. Judicial interpretation ⢠Work ⢠All types, including musical works, Pelham, [AG62], [68] cinematographic works and works of visual art: Spiegel, [AG42] and photographs C-145/10Painer [122]- [123] ⢠Made available to the public ⢠Work is lawfully made available to the public where it has been made available âwith the authorisation of the copyright holder or in accordance with a non- contractual licence or a statutory authorisationâ Speigel Online [89] ⢠But (oddly) CJEU indicated that the original manuscript and article had only been made available by the author insofar as they were accompanied by his statements of disclaimer dissociating himself with the content Speigel Online [93] ⢠Court then indicated that use may not be in accordance with âfair practiceâ because of failing to publish the authorâs statements of dissociation Spiegel Online [94]
- 6. Judicial interpretation ⢠Quotation ⢠Determined by âusual meaning in everyday languageâŚtaking into account the legislative contextâ and the purpose of the exception: Pelham [70]; Spiegel Online [77] ⢠âthe essential characteristics of a quotation are the use, by a user other than the copyright holder, of a work or, more generally, of an extract from a work for the purposes of illustrating an assertion, of defending an opinion or of allowing an intellectual comparison between that work and the assertions of that userâŚthe userâŚmust therefore have the intention of entering into âdialogueâ with that workâ Pelham [71] ⢠âDialogueâ could be broad because CJEU referred to AGâs Opinion [AG64] which describes dialogue as âWhether in confrontation, as a tribute to or in any other way, interaction between the quoting work and the work quotedâ ⢠But CJEU indicated that there can be no dialogue where it is not possible to identify the work from the quotation: Pelham [73] ⢠Hyperlinks can be a form of quotation: Spiegel Online, [AG40], [80]
- 7. Judicial interpretation ⢠Purpose of quotation ⢠The reference to âfor purposes such as criticism or reviewâ is âmerely an illustrative list of such casesâ: Funke Medien [43]; Spiegel, [28] ⢠âMany quotations, in particular artistic quotationsâŚare not for criticism or review, but pursue other objectivesâ: Pelham, [AG64] ⢠Extent of quotation ⢠Could be the entire work but must not extend beyond what is needed to achieve the purpose of the quotation and be in accordance with fair practice: (Spiegel Online [83]) ⢠Sufficient acknowledgment ⢠s.178 CDPA â identify the work by title or other description and identify the author unless published anonymously â there is flexibility in the means of sufficient acknowledgement: Pro Sieben [1999] FSR 610
- 8. Judicial interpretation ⢠Fair dealing ⢠âFair practiceâ â size of quotation (e.g. whether whole work) will be relevant: Spiegel Online [83] ⢠Fundamental rights, such as freedom of expression (FoE), will arguably be relevant to fair practice â this includes considering the nature of the âspeechâ: see Funke Median, [71], [74]; Spiegel Online [55] ⢠Discretion in implementation of âfair practiceâ in national law: Funke Median [43], but can probably look to fair dealing factors in UK ⢠Fair dealing factors developed under UK law â amount and substantiality of the work taken; excessive use in relation to the purpose, commercial competing with the claimantâs work and the unpublished nature of the work â arguably, nature of the claimantâs work and the purpose of the quotation should also be relevant if FoE is taken into account
- 9. Relevance of quotation to cultural institutions ⢠s. 30(1ZA CDPA) is not applicable to works that have not been made available to the public, so limited relevance to archives/museums when dealing with unpublished works ⢠Preservation or replacement copies of work â hard to see as quotation under CJEU approach - regulated by s.42 CDPA ⢠Assuming works have been made available to the public, they can be quoted in whole or in part for a range of expressive purposes, but note the need for âdialogueâ and âfair practiceâ ⢠EU-derived orphan works exception in s. 44B CDPA now repealed â can s. 30(1ZA) operate in the space left behind?
- 10. Relevance of quotation to education ⢠What about the relationship to s.32 CDPA? ⢠Note s. 32 covers all works, incl. those that have not been made available to the public - there must be fair dealing for the sole purpose of illustration for instruction for a non-commercial purpose by a person giving or receiving instruction ⢠Quotation exception could be used in addition to s. 32 ⢠Quotation may be relevant where there is a commercial educational purpose or in relation to a purpose that is ancillary to instruction (i.e. that does not fall within s. 32), such as activities organized by student clubs
- 11. Relevance of quotation to education ⢠Assessment â e.g. use of image or text excerpt in an exam question ⢠Lectures â e.g. use of sound or video clips, visual image/s or text excerpts during a lecture (live or recorded) ⢠Teaching materials â use of images, text excerpts or hyperlinks to material on VLE or in handouts ⢠Coursepacks â combination of materials into a digital coursepack ⢠Textbooks â use of text excerpts, images, stills from films ⢠Monographs â use of text excerpts, images, stills from films
- 12. Conclusion ⢠Quotation exception is broader and more flexible than you might expect (albeit case law has constrained its full potential s mandated by international copyright law) ⢠Quotation exception is a useful complement to the existing exceptions that educational and cultural institutions rely upon ⢠But when it comes to publishing educational or scholarly works, there is a resistance to allowing anything except short text quotations
Editor's Notes
- Art 10(1) Berne: âIt shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summariesâ Art 10(3) Berne: âwhere use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author if it appears thereonâ. (This version of Art 10(1) was introduced at the Stockholm Revision Conference 1967). s. 30(1ZA) CDPA 1988 was introduced by the Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 No 2356 (in force 1 Oct 2014).
- Aplin & Bently argument â GMFU Global because it creates a mandatory exception because of the clear language of the provision and its travaux. It relates to âuseâ that is not limited by type of work, type of act, or purpose. And it is âfairâ use because the conditions of Article 10(1) and 10(3) Berne, namely, the work having been lawfully made available to the public, attribution, proportionality and fair practice, must be satisfied. In particular, the requirement of âfair practiceâ embraces a range of normative considerations relating to economic and moral harm, distributive justice, and freedom of expression.
- Pelham involved the use of a two-second sample of a rhythm sequence from the Kraftwerk song âMetall auf Metallâ in the song âNur Mirâ. The alleged infringement was a reproduction of part of the sound recording (or phonogram) containing âMetall auf Metallâ. Spiegel On-line involved a controversy about an article authored by Volker Beck, an MP from 1994 to 2017 in Germany, which was published, he alleged, in a modified way to which he objected. In order to illustrate his point, Mr Beck published on his website the original (manuscript) version of his article and the published version. Spiegel Online made available for download on its website via hyperlinks these two versions, alongside an article that suggested Mr Beck had been misleading the public for years. Funke Medien operates the website of a German daily newspaper. It obtained, by unknown means, several military briefings, which it published in part as the âAfghanistan Papiereâ (âthe Afghanistan papersâ) and could be read online as individually scanned pages accompanied by an introductory note, further links and a space for comments. FRG brought an action for copyright infringement of these texts as literary works (claiming that were not official texts exempt from copyright). TuneIn The rulings would be âretained EU case lawâ within section 6(7) of European Union (Withdrawal) Act 2018, meaning that continue to form part of domestic law post-Brexit and continue to bind lower courts: s. 6(3). Court of Appeal and Supreme Court have power to depart from such judgments and orders âbut only on the same basis that the Supreme Court has power to depart from one of its own precedents or of one of the House of Lords in accordance with the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234: section 6(5A) of the 2018 Act and the European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020 (SI 2020/1525).â â75. In the domestic context both the House of Lords and the Supreme Court have consistently stated that this is a power to be exercised with great caution.â
- Correct that quotation would apply to all types of work â see wording of s. 30(1ZA) as well as that of Art. 10(1) Berne (and its travaux) Made available to the public â note that it is not a requirement of Art 9(2), 10(2), 10bis and 11bis(2) Berne and, in relation to UK law, not a requirement for s. 29 (research and private study) s. 30A (caricature, parody, pastiche), s. 32 (illustration for instruction). Note that the approach in Spiegel Online to include consent, plus statutory authorisation aligns with the Berne travaux. (Restricting it to only where the author has consented only makes sense if the requirement is seen as a proxy for the divulgation right â but it is not). Critical of the approach in Spiegel Online to link the specific form of the work to making available â this is better considered as part of fair practice. Such a requirement does not make sense given the exception also applies to the right of translation (it would suggest a work made available in French could not be quoted in English).
- On Pelham and dialogue â Art 10(1) Berne precludes introducing a condition that a quotation requires referencing back to the source work (even though such purpose will be relevant to proportionality and fair practice). However, it is possible to interpret the notion of âdialogueâ broadly to minimise this criticism. [GMFU â quotation is re-use of expressive material, for its expressive qualities where that material is recognisable as material from another author and is used or intended to be used in an act of expression, or at least in re-presentation, for its expressive qualities] On identifiability - this does not necessarily require that the quotation is without modification â seems to suggest identifiable to audience of the work â but which audience? Or should it be how it is presented as a quotation ? (e.g. see Parkin, arguing that sufficient acknowledge will probably satisfy this) â we suggest that neither is needed to be a quotation. As for hyperlinks court stated: âHowever, neither the wording of Article 5(3)(d) of Directive 2001/29 nor the concept of âquotationâ, as described in paragraphs 78 and 79 above, require that the quoted work be inextricably integrated, by way of insertions or reproductions in footnotes for example, into the subject matter citing it, so that a quotation may thus be made by including a hyperlink to the quoted workâ [80]. Stressed that hyperlinks are key to internet and thus giving effect to freedom of expression [81]
- On purpose - argue that it can be for any purpose â this is apparent from the Berne travaux â attempts to restrict quotation to certain purposes failed. One qualification â purposes which are covered by other provisions in the Treaty fall to be treated in accordance with those provisions â thus, a use for illustration of a book intended for use in teaching falls under Article 10(2), and as a special provision outside the more general âquotationâ exception, an exception defined by manner of use rather than purpose. The question of the relationship between the various exceptions was raised on a number of occasions before and during the Conference. Concern was prompted both by the newly proposed lexible exceptions clause to the reproduction right (what ultimately became Article 9(2)). Extent of quotation This requirement mirrors a fair dealing factor discussed in Hyde Park Residence v Yelland by Aldous LJ: âthe extent of the use was excessiveâ and the suggestion that, rather than using photographs, the information could have been given in narrative form. But it is now a separate consideration. It mirrors the second step of the (broad) proportionality test under Strasbourg HR law â i.e. whether the restriction/act is the least intrusive way of achieving this aim (but with similar efficacy). Note that this does not mean STRICTLY necessary - see Strasbourg jurisprudence where the court looks for alternative acts that would be as effective but less restrictive of rights (which is arguably different to the approach by the Court of Appeal in Yelland). This broad proportionality test usually involves asking: 1) whether the restriction is suitable for achieving a legitimate general aim (suitability); 2) whether the restriction/act is the least intrusive way of achieving this aim (but with similar efficacy) (necessity) and then 3) a balancing or proportionality test in a strict sense, ie a type of cost-benefit analysis which asks whether there is a net gain when the reduction in enjoyment of rights is weighed against the achievement of the aim. Sufficient acknowledgement â the quotation is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise).] s. 178 âsufficient acknowledgementâ means an acknowledgement identifying the work in question by its title or other description, and identifying the author unlessâ (a) in the case of a published work, it is published anonymously; (b) in the case of an unpublished work, it is not possible for a person to ascertain the identity of the author by reasonable inquiry;
- Particularly important that effectiveness of exception is safe-guarded and purpose observed given aim of exception is âto ensure observance of fundamental freedoms.â Funke Median, [71]; Spiegel Online, [55] Funke Median: âAs is clear from the case-law of the European Court of Human Rights, for the purpose of striking a balance between copyright and the right to freedom of expression, that court has, in particular, referred to the need to take into account the fact that the nature of the âspeechâ or information at issue is of particular importance, inter alia in political discourse and discourse concerning matters of the public interestâŚâ [74] Discretion to implement is constrained by proportionality; fair balance between rights and users, fair balance with Charter rights and the three step test: see Spiegel Online [16]-[39] and Funke Median [27]-[54] GMFU points to the following considerations: Nature or purpose of the quotation Size of quotation and its proportion to the source work Harm to the market for the source work Impact on the integrity interests of author of source work Nature of the claimantâs work No role for good/bad faith; limited role for custom
- Making available to the public requirement as a barrier â many archives and museums are dealing with unpublished works s. 30 (1A) CDPA For the purposes of subsections (1) and (1ZA) a work has been made available to the public if it has been made available by any means, includingâ (a) the issue of copies to the public; (b) making the work available by means of an electronic retrieval system; (c) the rental or lending of copies of the work to the public; (d) the performance, exhibition, playing or showing of the work in public; (e) the communication to the public of the work, but in determining generally for the purposes of those subsections whether a work has been made available to the public no account shall be taken of any unauthorised act. Why is copying for preservation or replacement not quotation? Hard to see how the act of making a copy is using the work for its expressive qualities, as opposed to the functional purpose of ensuring there is a copy. Even with the repeal of the orphan works exception (s. 44B omitted (31.12.2020) by virtue of The Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/605)), there are the regimes envisaged by s. 116A (licensing of orphan works) and 116B CDPA (extended collective licensing schemes). Certainly the orphan works licensing scheme is superior to the exception because as described by Deazley and Patterson: âwhile the scheme adopts the same definition of an orphan work as the Directive, it applies to all types of copyright work including free-standing artistic works (photographs, drawings, maps, and so on) anyone can apply for a licence under OWLS, not just libraries, educational establishments, museums and archives OWLS enables both commercial and non-commercial uses of orphan works under OWLS the IPO will grant licences for all types of commercial or noncommercial activity, and not just those activities permitted under the Directive.â How could quotation help with orphan works? The concern with orphan works is the reappearance of the rightholder (despite a diligent search) who will object to the use that has been made of the work. This can have a chilling effect on use, especially for public sector institutions. The various solutions to the orphan works problem have sought to reduce the risk exposure of users but with varying levels of success. Possibly, the quotation exception could provide some reassurance in relation to the use of (published) works where the rightholder is not locatable. Rather than being concerned with a diligent search, the concern would be sufficient acknowledgment â however this doesnât apply where practically impossible. Reliance on the quotation exception would then turn on the types of uses that are proposed. The repealed exception in s.44B referred to copying for the purposes of digitisation, making available, indexing, cataloguing, preservation or restoration and making the orphan work available to the public. The difficulty with these uses is that they do not relate to the expressive qualities of the work, but rather its functionality. However, in the case of digitisation and making available, if this was for the purposes of dialogue then it could qualify as quotation. And it might be fair quotation because it does not compete with the work (because there is no obvious market for the work if there is no easily locatable licensor).
- s. 32(1) Fair dealing with a work for the sole purpose of illustration for instruction does not infringe copyright in the work provided that the dealing isâ (a) for a non-commercial purpose, (b) by a person giving or receiving instruction (or preparing for giving or receiving instruction), and (c) accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise). Hudson (2022) suggests that the purpose should not be construed narrowly to mean âsolely to illustrate a pointâ, but instead âshould be seen as permitting the use of third-party content âto support, enrich or complement the teaching, including learning activities.ââ Instead, the âheavy liftingâ should be done by âfairnessâ. As well ânon-commercial purposeâ does not preclude HEIs because they charge fees. Providing teaching resources may not be closely integrated with the services (education) for which fees are charged. She suggests there will not be enough next between the dealing (e.g. making a film available to students) and the generation of the income. As a policy matter, it also makes sense otherwise the exception just wouldnât apply to universities in the UK (where students routinely pay fees now). âBy a person giving or receiving instructionâ â applies to HEIs therefore should apply to acts irrespective of whether performed by an academic, librarian or learning technologist.
- Assessment â e.g. use of an image or text quotation in an exam question â assuming the work has been made available to the public, this would likely be a fair quotation â the purpose of the quote would be âillustrating an assertionâ or encouraging dialogue with the work (e.g. critically discuss the extract/image); the purpose is educational â assessing a studentâs learning; the extent of the extract or image is likely to be proportionate to the assessment goal; it is fair because of the educational purpose, it would not be excessive given the assessment purpose and the use would not be competing with the claimantâs work (a text quote does not substitute for the literary work from which it comes, nor would an image reproduced on an exam substitute for the image). Acknowledgment of the source in the exam will be needed (but this is standard practice in exams). Note that this use would also be justified under s. 32 CDPA. Lectures â e.g. use of sound or video clips; visual image/s; text excerpts during a lecture (whether live or recorded) â assuming the work has been made available to the public, this would likely be a fair quotation â likely to be an intellectual comparison between the work and assertions of the user or dialogue with the work; the purpose is educational; extent of use is proportionate to the educational purpose (this may differ depending on context â e.g. showing The Descendants to liven up a property law lecture is different to showing it as part of a module on Alexander Payneâs oeuvre); dealing like to be fair because it does not compete with the claimantâs work (clips do not substitute for the works, neither do images if they are reproduced at lower resolution); acknowledgement of source needed. The analysis should not differ if the lecture is recorded and put on the VLE provided the recorded version is available to a restricted audience. Also, likely to be justified under s. 32 CDPA. Teaching materials â images, clips or text quotes or hyperlinks on VLEs or lecture handouts - assuming the work has been made available to the public, this would likely be a fair quotationâ there is an intellectual comparison or dialogue with the work â hyperlinking to the work can be quotation as per Spiegel Online; the purpose is educational; extent of it proportionate to the educational purpose; fair because it does not compete with the claimantâs work (esp. if images are lower resolution or smaller); acknowledgement of source needed. With hyperlinks, be wary of linking to content that is on websites whose predominant purpose is to facilitate sharing of unauthorized material. Also, likely to be justified under s. 32 CDPA. Ancillary activities â e.g. student use â images used to advertise a student society event or text quotes used on sports kit - this could fall under broad notion of âdialogueâ â as a form of tribute â and the use is likely to be fair because unlikely to impact the market for the work. Coursepacks â combination of materials into a digital coursepack â s. 30(1ZA) would not justify combining whole works â why? While quoting a whole work may be quotation, it is not fair quotation, because it would likely harm the market for the work. Similarly, s. 32 CDPA would not justify coursepacks. If, however, the coursepacks used excerptsâ the relevant pages/passages â then whether this amounts to fair quotation depends on whether it would harm the market for the work â if this then means certain books or journal subscriptions are not bought, this would be problematic. If provided digitally, it would need to be on a restricted basis. In any event this seems to be ruled out by s.36(6) CDPA (exception on copying of extracts by educational institutions) and the existence of a CLA licences. Textbook & monograph usage may be harder to justify under s. 32 CDPA; harder to show non-commercial purpose because of sale of books; for monographs perhaps more remote from âinstructionâ Textbooks â use of text excerpts, images â assuming the works have been made available to the public, this could be fair quotation â likely to satisfy the requirement of entering into dialogue with the work; extent of use would be relevant (for text excerpts); use of entire image may be justified for the educational purpose, but fairness may depend on whether the use would compete with the market for the work. Weighing into fairness assessment may be the commercial nature of the textbooks. But note here the role of Publishersâ guidelines and their constraining effect. E.g. STM Permission Guidelines 2022 - use of max. 400 words from an individual journal article or book chapter subject to overall limit of 800 words from a single book or journal issue/edition and maximum total of 5 figures/tables/images from a single book or journal issue/edition Cite own experience with textbook where permissions had to be sought as a matter of course; some of the publishers were not signatories to STM Permission Guidelines (e.g. Harvard University Press), but were members of Association of University Presses, which are guided by fair use. Even so, had to pay a license fee for use of a 700 word extract from a book. Monographs â use of text excerpts, images, stills from films (including on the cover) - assuming the works have been made available to the public, this could be fair quotation â likely to satisfy the requirement of entering into dialogue with the work; extent of use would be relevant (for text excerpts); use of entire image may be justified for the scholarly purpose, but fairness may depend on whether the use would compete with the market for the work. But note here the role of Publishersâ guidelines and their constraining effect. E.g. STM Permissions Guidelines do not extend to use on the cover and apply only to STM signatories (so what happens if youâre outside that circle?) Cite our own experience where our publisher would not allow us to use Edouard Manetâs Dejeuner sur Lâherbe. This painting, created in 1862, is widely understood as inaugurating âmodernism.â It features an image of two bearded smartly dressed gentlemen picnicking with a naked woman, while in the middle distance another woman appears to be washing her feet in a pond. It is remarkable for its oddity. The painting is also widely acknowledged as having been based upon a detail from Marcantonio Raimondi engraving of Raphaelâs Judgment of Paris. The three figures in Raphael are âtwo river gods and a water nymph sitting by the marshes,â but in Manet become âtwo Parisian men about town and their naked female companion.â ⌠The reason we wanted to include them in our book is because of what commentaries on the Manet painting tell us about the ordinary use of the term âquotationâ. Art critic, Michael Fried calls DeĚjeuner âperhaps the most notorious instance of quotation from the Old Masters in Manetâs oeuvre.â Fried explains âthe three foregrounded figures in Manetâs painting are a direct quotation from Marcantonio Raimondiâs engraving.â ⌠Yet CUP required us to get âpermissionâ!! There was no longer copyright in the underlying work, so their concern was in relation to a photograph of the work â we cited the quotation exception and CUP said their lawyers are very risk averse and always want permission. This became too hard, and we had to omit the images from the monograph (even though we had used them regularly when presenting our work at conferences). Hudson and I are involved in a project: This project will use qualitative and quantitative techniques (âcombined methods researchâ) to: (1) describe current industry practices; (2) assess the impact on these practices, if any, of the new quotation exception; (3) identify norms that have developed around quotation, and explore the reasons for these norms and whether they are changing; and (4) consider the desirability of new workflows and legal interpretations for the publishing industry.