One of the questions we are asked most often here at Copyrightlaws.com is how to determine whether exceptions in the XYZ copyright act apply to an individual’s uses. After first reminding the individual that we cannot give legal advice, we often have to resort to the following response: It depends on your situation and your interpretation, among other factors.
The fact of the matter is, the only guaranteed affirmation that something is indeed fair use or fair dealing, or falls under one of your local copyright exceptions, is a court of law, and most of us would prefer to avoid this expensive and time-consuming step. So, that being said, what can you do to determine whether your use requires permission or whether it can be considered an exception? Aside from taking a look at our guides for fair dealing and fair use, your first step should be to do a risk assessment for your particular situation.
Before we tackle the risk assessment itself, we should probably define what risk is. Essentially, risk is the chance of an unfavourable outcome from a certain action. In the case of copyright management, this unfavourable outcome would most often encompass an infringement suit, or a reputational loss related to a perceived infringement.
Though how a risk assessment proceeds will depend on the particulars of your case, having a general idea of what risk management in copyright entails can help make this process smoother and more efficient. To help you understand this important topic better, we’ve compiled five key tips below:
1) Understand what risk management is
The first step in risk management is to understand what this is. Risk management in general, according to IBM, is “the process of identifying, assessing and addressing any financial, legal, strategic and security risks to an organization.” This process, as it pertains to copyright, includes the steps you take to determine whether the use of a work without permission is too risky and whether or not to proceed. Of course, the least risky option is to simply obtain permission from the copyright holder for your use of their intellectual property, but sometimes this is not the best or the most logical option to take. (For example, if you’re a student making copies of an article to use in your research process, it would likely be difficult for you to seek permission to use all of those works. Luckily, most countries have a research exception that applies!)
Your own situation will determine what risk management entails, but there are five widely accepted steps you will want to take: identifying risk, assessing risk, developing a plan to mitigate any risk, implementing your plan, and monitoring the outcome after implementation. Depending on how your organization handles risk management, the three final steps might be more generally applied, while the first two might be applied on a case-by-case basis. If you’re unsure about your internal processes, make sure to include questions about those when gathering all the pertinent information needed (see below for more information)!
2) Gather all necessary information
Once you have an understanding of the concept of risk management, the next step is to prepare everything you need to assess the risk in your situation. This part of the process involves gathering everything you need to know about the use of the work: how it will be used, in what format, for what purposes (commercial or non-commercial), for how long, how it will be accessed and in what countries, how many users will have access to it (if applicable), and any other information you would gather if you were planning to seek a licence for your use. HOT TIP: Just as commercial uses can still fall under certain exceptions, some non-commercial uses could be deemed not fair by a copyright holder. Don’t let the commerciality of your use be the only determining factor!
As part of this step, you should also gather all useful information on how exceptions work in your country. For example, fair dealing in Canada only applies to a specific list of uses and involves a two-step test to determine if your use could be considered fair. In the United States, on the other hand, the four factors [PW1] can be interpreted more broadly to decide whether something likely counts as fair use. Your country’s copyright office or authority should have information available on the exceptions in your nation’s copyright laws, and they might even offer information on the next item (precedent) as well.
Finally, it is also helpful to determine your organization or institution’s risk tolerance. Risk tolerance is the level of risk your organization is willing to accept. This is a question you can likely pose to management or your institutional legal counsel, if you have access to one.
3) Look at precedent
A useful tool for conducting your risk assessment is precedent, that is, the decisions made in prior court cases for uses like the one you are contemplating. While it doesn’t guarantee that your use falls under an exception, drawing from precedent can help you make your case to management (or whoever makes the decisions in your organization) as to why you think a work can be used under a copyright exception. The US Copyright Office has a very helpful fair use index that makes this type of research much easier. Your country’s copyright office might have something similar!
4) Err on the side of caution
As mentioned above, the safest course of action is always to ask permission, though in doing so, you can run the risk of the copyright holder requesting high fees or even refusing to issue a licence. However, once you go through your risk assessment, if you determine that there is more of a risk than you or your organization is willing to take, the best decision is probably to err on the side of caution and either not use the work or reach out to request permission. This is where having backup options in mind can be particularly helpful!
Ultimately, as written at the beginning of this article, whether or not a use falls under an exception can only be conclusively determined by a court of law. Regardless of the results of your assessment, it is up to the copyright holder to determine whether or not they think you are infringing their rights, and they can always contact you either for a licensing fee or to request that you remove their work from your project. Bear this in mind when making your decision!
5) Document everything
Finally, as with any element of copyright management, you should document every step of your risk assessment process, from the gathering of information to the final decision. Not only will this help you make more efficient decisions in the future, but it will also provide you with necessary information in the (hopefully unlikely) event of an infringement suit.
We hope these tips on risk management are of use to you! Remember, nothing posted on this website constitutes legal advice. Rather, we offer these tips to help guide you in wading through the sometimes complicated world of copyright and licensing. If you have any questions about this post or any other content on our website, please do not hesitate to get in touch!
