What is considered 'fair dealing' under Australian copyright law?

In Plain English

"Fair dealing" is a concept in Australian copyright law that allows you to use copyrighted material without permission from the copyright owner, as long as your use is considered fair. The Copyright Act 1968 outlines specific situations where using copyrighted material qualifies as fair dealing.

Here's a breakdown of what constitutes fair dealing:

  • Research or Study: Copying a "reasonable portion" of a work for research or study is considered fair dealing. A reasonable portion is defined as:

    • For hardcopy books (at least 10 pages long and not artistic works): 10% of the pages or one chapter.
    • For electronic books: 10% of the words.
    • For journal articles: one or more articles from a periodical publication for the same research or course of study
    • Criticism or Review: Using copyrighted material for criticism or review is fair, as long as you sufficiently acknowledge the source.
    • Parody or Satire: Using copyrighted material for parody or satire is fair.
    • Reporting News: Using copyrighted material for reporting news in a newspaper, magazine, or film is fair, as long as you sufficiently acknowledge the source.
    • Judicial Proceeding or Professional Advice: Using copyrighted material for the purpose of a judicial proceeding or for seeking professional advice from a legal practitioner, patent attorney, or trade marks attorney is fair.

Keep in mind that even if your use falls into one of these categories, a court may consider other factors to determine whether it is genuinely a "fair" dealing.

Detailed Explanation

The Copyright Regulations 2017 and the Copyright Act 1968 outline what constitutes "fair dealing" in Australia. Fair dealing is an exception to copyright infringement, allowing certain uses of copyrighted material without the copyright owner's permission.

Fair Dealing Provisions:

The following uses of copyrighted material may be considered fair dealing:

  • Research or Study: Both the Copyright Regulations 2017 and the Copyright Act 1968 specify that copying a "reasonable portion" of a work for research or study can be fair dealing. The Copyright Regulations 2017 define "reasonable portion" as:

    • For published works in hardcopy form (not less than 10 pages and not an artistic work): 10% of the number of pages or one chapter.
    • For published works in electronic form only: not more than 10% of the number of words in the work.
    • For journal articles: one or more articles from a periodical publication for the same research or course of study
    • Criticism or Review: Section 103A of the Copyright Act 1968 states that fair dealing with an audio-visual item for the purpose of criticism or review is not an infringement, provided sufficient acknowledgement is made.
    • Parody or Satire: Section 103AA of the Copyright Act 1968 states that fair dealing with an audio-visual item for the purpose of parody or satire is not an infringement.
    • Reporting News: Section 103B of the Copyright Act 1968 allows fair dealing with an audio-visual item for reporting news in a newspaper, magazine, or similar periodical (with sufficient acknowledgement) or by means of communication or in a cinematograph film.
    • Judicial Proceeding or Professional Advice: Section 104 of the Copyright Act 1968 states that copyright is not infringed by anything done for the purpose of a judicial proceeding or a report of a judicial proceeding. Section 43 of the Copyright Act 1968 states that a fair dealing with a literary, dramatic, musical or artistic work does not constitute an infringement of the copyright in the work if it is for the purpose of the giving of professional advice by a legal practitioner, patent attorney, or trade marks attorney.

Important Considerations:

  • Even if a use falls within one of the categories above, it must still be "fair."
  • The Copyright Regulations 2017 states that more extensive reproduction may still constitute fair dealing, and to determine whether it does, it is necessary to have regard to the criteria set out in subsection 40(2) of the Copyright Act 1968.
  • Copying of audio-visual items may infringe copyright unless otherwise permitted by the Copyright Act 1968, or unless it is a fair dealing under section 103C of the Copyright Act 1968.
  • Section 103C(2) of the Copyright Act 1968 outlines the matters to consider when determining whether a dealing with an audio-visual item constitutes a fair dealing for research or study, including the purpose and character of the dealing, the nature of the item, the availability of the item at a commercial price, the effect on the market value of the item, and the amount and substantiality of the portion copied.