The UK Copyright Designs and Patents Act (‘the Act’) protects copyright in a work or a substantial part thereof. This means that without a defence it is an infringement to copy or adapt (for example) a whole (or substantial part of) work. It therefore follows that it is not an infringement of copyright to copy an insubstantial part of a work.
Some of the difficulty in deciding what is insubstantial is that ‘the Act’ does not define either ‘substantial’ or ‘insubstantial’. There have been a few legal cases from the broadcast and publishing industries which judgements erred on the side of the use of more, rather than less based on the nature of the defences. However, most of us do not want to challenge the law but work within reasonable guidelines which will help us use some extracts without permission and still respect copyright holders rights in their works.
The question of substantiality of a quoted extract is often confused with a factual measurement of length or duration. This is not so. The substantiality of a quoted extract is measured by its value, significance or importance in relation to the work as a whole. This has some interesting results. Several pages or more taken from a book might well not be considered substantial, yet a few paragraphs disclosing the identity of the murderer in a whodunnit might well be. Everything depends on the importance of the part to the whole.
It is impossible to quote more than a few lines of poetry or notes of music without infringing by quoting a substantial part. This is because it is held that the words in poetry, or the notes in music, have to ‘fight to be included’. At times though publishers provide guidelines on their websites which deems a lengthier use insubstantial.
To assess quoted extracts from textual material legal precedent is the only guide, though some industry guidelines have evolved for the benefit of those involved in the publishing industries. The Publishers Association are wary of offering any hard and fast guidelines on what constitutes insubstantial given that the gauge needs to be on quality as well as quantity. However, taking into account the information here, in defining an insubstantial part of a long work, such as a novel or an extended journal article, the following may be considered a risk acceptable to your institution:
- Around 400 words of continuous prose from a textbook or novel
- Around 800 words of discontinuous prose (providing no extract is no more than 300 words) from a textbook or novel
- Around 5% from an article
These figures are no more than guidelines generally accepted within the UK publishing industry. They are meant for ease of use and are not definitive rulings. Every case must be judged on its merit and the ability to do that comes with experience. The guidelines are offered only in the spirit of a brief shortcut towards experience.
When making decisions it is helpful to bear in mind the much cited dictum of Petersen J. in University of London Press Limited v University Tutorial Press Ltd (1916) 2 Ch. 601 that ‘what is worth copying is prima facie worth protecting’.
In most instances decisions will be taken on a risk basis. On that basis it is worth considering:
- The amount of the work in question (e.g. duration taken from a film or recording)
- The importance of its use to you (if your work relies heavily on another third party extract, it’s likely you should clear)
- Whether your use of the extract would damage any commercial market
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