Fair Dealing
What is Fair Dealing?
The Fair Dealing provisions in the Copyright Act allow limited use of copyright material without requiring permission from the copyright owner. Fair Dealing only applies to certain purposes:
- fair dealing for the purpose of research or study;
- fair dealing for the purpose of criticism or review;
- fair dealing for the purpose of parody or satire;
- fair dealing for the purpose of reporting news;
- reproduction for the purpose of judicial proceedings or professional advice.
Certain limitations and conditions also apply. For University staff and students the most relevant purpose is research or study. Criticism and review may also be of use.
Fair Dealing is not the same as Fair Use.
Research or Study
Fair Dealing for the purpose of research or study allows an individual to use or copy limited amounts of copyright material without infringing copyright for the purposes of research or study. Students and staff use this provision for their personal copying. Staff wishing to copy material for teaching rely on the Statutory Licences to do so. See Guidelines for Using Copyright Material for Educational Purposes.
Research is defined as the 'diligent and systematic enquiry or investigation into a subject in order to discover facts and principles'. Study is defined as 'the application of the mind to the acquisition of knowledge, as by reading, investigation or reflection; the cultivation of a particular branch of learning, science or art.' The research and study provisions are not limited to people enrolled in formal courses; they also apply to people studying or researching under the own direction.
These provisions apply to literary, dramatic, musical and artistic works or audio-visual items. For literary, dramatic and musical works the Copyright Act has determined that the following amounts are fair:
- the whole or part of an article from an issue of a newspaper, magazine or journal;
- more than one article from an issue of a newspaper, magazine or journal if each article relates to the same subject matter; for example, two articles about the Wik case from a legal journal;
- if copying text or printed music which is published as an edition of 10 or more pages, you may copy 10 per cent of the total number of pages or one chapter, whichever is the greater.
There is no equivalent practical guide for works less than 10 pages, e.g. poems, artistic works or audio-visual items including videos or films.
The 10 per cent or one chapter rule does not apply to:
- artistic works (including photographs and drawings);
- videos;
- recordings;
- anything which is not printed (e.g. a computer program or sound recordings);
- anything unpublished;
- text or music published as an edition of fewer than 10 pages;
- a work published as part of a collection of works (e.g. a newspaper, magazine, or anthology).
For these materials you need to determine if, in all circumstances, the dealing is fair. If you are intending to copy such materials the following five factors are to be considered to determine if the dealing is fair:
- the purpose and character of the dealing; (e.g. copying in connection with a university course is more likely to be fair than copying for research which may have commercial applications)
- the nature of the copyright material (e.g. it may be less fair to copy a work of a high degree or skill than a mundane work);
- the possibility of obtaining the copyright material within a reasonable time at an ordinary commercial price (it would be considered unfair to photocopy all or most of a work that you could buy);
- the effect of the dealing upon the potential market for, or the value of, the work (making more than one copy is less fair than making a single copy); and
- where only part of the work is copied: the amount and substantiality of the part copied in relation to the whole work (it is less fair to copy a large or important part of the work than to copy a small or unimportant part).
Each case must be considered on its merits.
The use of an audio-visual item is considered fair if the 'fairness' of the dealing is assessed with the five factors outlined above.
Criticism or Review
This provision allows a literary, dramatic, musical or artistic work - or an adaptation of one - to be reproduced for the purpose of criticism or review, without infringing copyright or requiring permission from the copyright owner. However, a serious critique or review must be completed. If you are using the copyright material as an example or to illustrate a point, you cannot rely on the fair dealing provisions for criticism or review.
Any work used under this provision must be properly acknowledged, so that the moral rights of the author are respected. Any acknowledgment should identify the author (unless the author is anonymous or has agreed or directed that they not be named) and identify the work from which the copies are taken by its title or other description.
Staff and students might use the criticism and review provisions if presenting material at a conference. A work can be copied for inclusion in a conference paper if the intention is to comment critically on the material. Without the protection of the fair dealing provision this copying might - assuming a 'substantial amount' was used - amount to an infringement of copyright.
In order to obtain the protection of this section the purpose of the dealing must be criticism or review. If the court considers that the real purpose of the dealing was to capitalise on publishing another creator's material, the protection will be lost.
This category of fair dealing will very rarely apply to multiple copying for distribution to students, but it may apply to copying you do for yourself or for other staff. It may also apply to communications between academics for the purpose of academic criticism and discussion.
Parody or Satire
This provision permits use the of literary, dramatic, musical or artistic works as well as adaptations of literary, dramatic or musical works for the purpose of parody and satire. Audio-visual works (cinematographic films, sound recordings & broadcasts) are also included. The Act has not defined parody or satire, so the dictionary definition of the terms apply.
If using material under this provision, it is important that the moral rights of the copyright owner or creator are considered.
Reporting the News
This provision allows a literary, dramatic, musical or artistic work (or adaptation of one) to be used or reproduced for the purpose of, or for a purpose associated with, reporting the news without infringing copyright. The news must be reported in a newspaper, magazine or similar periodical, cinematographic film or communication and the work must be acknowledged.
Musical works cannot be played as part of reporting news under this provision unless the work forms part of the news being reported.
Judicial Proceedings or Professional Advice
This provision allows a literary, dramatic, musical or artistic work to be used or reproduced for the purpose of judicial proceedings or reporting judicial proceedings or giving professional advice.
The professional advice provision is limited to a legal practitioner or a person registered as either a patent or a trade marks attorney.
Further Information
Australian Copyright Council Information Sheet #53: Copying For Research or Study.