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Digital theses and ORA: Fair dealing

Guidance notes

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Legal exception to copyright infringement

You may be able to use a work protected by copyright where a legal exception exists. There is, however, only one exception that would apply to a work included in a thesis to be deposited in ORA.

Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement [(unless this would be impossible for reasons of practicality or otherwise)] and provided that the work has been made available to the public.

Fair dealing is often the most difficult aspect of the exception to assess. It is also important to understand that it is very different from “fair use” provisions under US copyright law. There are no statutory criteria for fair dealing, but the courts have identified a number of factors that they take into account. It is generally a matter of impression and, accordingly, no one factor is determinative and the weight attached to them may vary from case to case. The two main factors likely to be considered include:

  • whether the use competes with exploitation of the work by the owner – this is about whether your use acts as an acceptable substitute and whether it otherwise affects the value of the work; and
  • the extent of the use and the importance of the parts used – this is about whether you have used more of the work than you needed to for the purpose of criticism or review. You may have only reproduced a small part of the work, but the question of fairness may still be engaged if it is the most interesting and valuable part. In contrast, it may be fair to reproduce the whole work in certain circumstances, particularly if it is very short. Other factors may be relevant; for example: your motives for using the work; whether criticism or review is the sole or main purpose of your use; and the means by which you obtained the work

The different aspects of the 'Fair dealing' exception are considered in the "Third party copyright in theses" document in the left hand menu.

Oxford Research Archive

Oxford University Research Archive (ORA) is an institutional repository for the University of Oxford and is home to the scholarly output of its research members. It holds publications, theses and research data.

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