Copyright Aid

Hello,

I am a freelance designer and educator. A few years ago, during lockdown, I took advantage of the enforced time-out from work to create a blog with a mission of sharing my expertise gained from many years of education practice, with teachers and educators around the world. The blog consists of articles on different design concepts, and methods in which these can be taught in an educational context to stimulate creativity and enrich learning experiences for young people.

As the blog is about design, most written posts use images to explain, comment on and/or give examples of ideas and concepts discussed; never are images used as illustrations or to 'decorate' the posts. I prioritised using my own images and images licensed under the Creative Commons terms of use. When using images that are not mine, I provided a link to the source (where I could find one), credited the photographer (where I could trace back to original source), or link to a company website (where I discuss a specific product, for example).

I, like many others on this very helpful forum, have had the unpleasant experience of dealing with PicRights regarding one particular image whose source I could not trace but included in my blog, as I was under the impression that this constitutes 'fair use'. I will not go in to detail of my (unsuccessful) negotiations with this company, but am writing here to ask whether fair use is indeed an actual valid term, and whether there are instances where use of image, fully credited but without purchasing license or acquiring direct permission, is within copyright law?

If the answer is no, I shall have to take down my blog, as I do not have the funds nor the time to trace every image I use in my articles, negotiate permissions and buy licenses, even if these would be considered for Editorial Use and be reasonably priced as such. Of course, this is such a shame, I feel using the web to share good practice benefits and enriches so many people.

Thank you in advance for your consideration of this matter!

Hi koladam,

Welcome to the forum.

You have asked specifically about the term Fair Use. This is an American legal doctrine and so if you are not based in the USA it may be misleading to talk about that term here in relation to your use of the image which is in dispute. In the UK (and Australia, New Zealand and Canada, and to a lesser extent India) the doctrine of a series of legal exclusions to copyright law is known as Fair Dealing. There are specific categories for which fair dealing may apply. This is in contrast with the US fair use doctrine which can be invoked in almost all situations where infringement may be alleged.

The fair dealing categories are contained in sections 28A to 31 of the Copyright Designs and Patents Act 1988. They all require that any use under each of the separate headings is 'fair'. This means that it would be considered fair by a reasonable person, and not overly disadvantageous or unfair to the copyright owner. So this means that the use must be strictly related to the category and no more of the original work is to be used than is essential for that purpose. In most cases a credit must be given, if not to the actual author of the work if they are unknown, then to the source of the work. Several of the categories do not apply to any commercial use of the work.

From your description, it sounds as if there may be grounds for examining if the section 29 exception applies. This is for the purpose of research for a non-commercial purpose. There is no stipulation that the results of any research remain private, only that the research cannot be published in a manner which could be interpreted as commercial, that is to say any income or like benefit arises, or may arise at some future date, from the publication. Note that the section 30 exception for the purpose of criticism or review would not apply as that can only be invoked where the critical appraisal is of copied work itself or another work. In other words it does not apply where a photograph (for example) is being used to illustrate a point in the text or discussion. Incidentally, while you mention that your venture has an educational basis, sadly none of the exceptions for the purpose of education to be found in sections 32 to 36A can apply to your blog as they are restricted to education done in formal establishments such as schools, colleges and universities recognised by the Secretary of State for Education (see section 174).

Also, from your description, I would agree that your use of these images constitutes editorial use, rather than for example, commercial or advertising use.

But beware. Fair dealing cannot be justified due to having insufficient time or resources to locate copyright owners, negotiate permissions or buy licences.

Hi AndyJ,

Firstly, thank you so much for taking the time to reply to my query, it is very much appreciated! I am indeed based in the UK, so much obliged to you pointing out the differences between US and UK legal terms. My wanting to understand this area is twofold; one, in order to see whether I should just abandon my mission of spreading goodwill and take my blog down, or whether it is safe to leave it as long as all images are credited etc; the other, to be better informed in my 'negotiations' with PicRights, who although are asking for a not-very-high sum for using an unlicensed image in my blog, are still demanding 4 times the price it would cost to buy the contested image on Alamy (which, although I have removed from the blog, I have also purchased, just to repent in retrospect for having used it without the appropriate license after being unsuccessful in locating its origins anywhere on the web, and yes, I now know this is not an excuse and has no legal standing!). So far am holding my ground by offering them the Alamy price, and know that they will probably escalate regardless and am hoping I will not be intimidated in to complying to their demand..

Thank you once again for sharing your time and expertise!