The fair dealing exceptions

Fair dealing exceptions allow use of copyright material that are fair and for specific purposes.

A large arch with the words, 'Welcome to the Indiana State Fair Midway' painted on it.

The fair dealing exceptions are the most well-known.
Photo: Paul J Everett. CC BY 2.0. Full attribution information below.

It is often wrongly assumed that Australia has fair use like the United States. We do not. In Australia we have fair dealing, which allow uses that are fair and for specific purposes.

It is important for information professionals to know the fair dealing exceptions as clients will often ask questions related to the exceptions while using items in collections.

What is a fair dealing?

A fair dealing with a literary, dramatic, musical or artistic work, with an adaptation of a literary, dramatic or musical work or with audio-visual items is not an infringement of copyright where the dealing is for the purpose of:

Research or study

The use of copyright material for the purpose of research or study is not an infringement provided the use is fair.

The exception is not dependent on the person being student enrolled at an educational institution. It includes independent research or study, such as researching a family history or researching for an article or blog post.

Criticism or review

Fair dealing also includes criticism or review. You can use copyright material in order to make a judgement or comment provided the use is fair. When using the provision you must also acknowledge the author and title of the work.

Parody or satire

In 2006 Australia introduced fair dealing for the purpose of parody or satire where that use is fair. Those terms are not defined in the Copyright Act and there has not been a court case related to this provision as yet. A court is likely to consider the definitions of ‘parody’ and ‘satire’.

A parody is an imitation of something else, designed to comment on the original or its creator. Often for parody to work parts of the original need to be included. Satire is taken to involve the use of irony, sarcasm or ridicule to expose, denounce or deride characteristics or actions such as vice or folly.

Reporting of news

Newspapers, magazines and periodicals and broadcasters can use copyright material to report or comment on the news, provided the use is fair. When using the provision you must also acknowledge the author and title of the work.

Judicial proceedings or professional advice

Copyright material can be used for the purpose of giving professional advice by a lawyer where the use is genuinely for the purpose of giving advice, and provided the use is fair.

Providing access for people with a disability

The new fair dealing was introduced as part of the Copyright Amendment (Disability Access and Other Measures) Act 2017 which commenced on Friday 22 December 2017. The disability provisions were enacted  in line with Australia’s obligations under the Marrakesh Treaty for people with print disability (Marrakesh Treaty).

They include a fair dealing exception for the purpose of giving people with a disability access to the material and an exception to assisting people with a disability to access material. In order for the fair dealing provision to apply, the use of copyright material must be for the purpose of access by people with a disability, provided the use is fair.

What makes a dealing fair?

Each fair dealing requires the use to be fair. This begs the question, ‘What is fair?’

Fairness is determined by considering all circumstances. In relation to fair dealing for research and study, for example, the Copyright Act outlines matters to be regarded in determining whether a dealing with copyright protected material constitutes a fair dealing. These matters are:

  • The purpose and character of the dealing – e.g. whether it was a commercial or noncommercial use.
  • The nature of work used.
  • The possibility of obtaining the work within a reasonable time at an ordinary commercial price.
  • The impact on the copyright owner.
  • Where part of the work is reproduced the amount and substantiality of the part copied in relation to the whole.

It is also important to note that for research and study the following are fair dealings:

  • Reproducing one article from a periodical.
  • Reproduction for research or study of not more than a reasonable portion of a work.

And a reasonable portion is taken to be:

  • 10% of the total pages in a published edition of a literary, dramatic or musical work.
  • Or 10% of the total number of words in a published literary or dramatic work in electronic form.
  • Or a single chapter if the work is divided into chapters.

Fair dealings in or by libraries and archives

Clients will often rely on fair dealings to make use of library or archive collection materials. There are also situations when libraries and archives may rely on the fair dealing exceptions themselves, such as:

  • Relying on reporting news when writing newsletters or blogs posts.
  • Relying on criticism or review when publicising the collection.
  • Relying on access by persons with a disability when converting commercially available material into accessible formats.

Photo: ‘indiana state fair2’ 2007, Paul J Everett. This version has been adapted. Original available on Flickr, flic.kr/paul_everett82/1108754202. Available for reuse under the terms of a Creative Commons Attribution 2.0 Generic licence.

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