Associations and institutions are welcome to apply to become members of the ALCC.
Fair dealing exceptions allow use of copyright material that are fair and for specific purposes.
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.
If a use of copyright material is for the purpose of research or study and not more than a reasonable portion of a work is being used it is a fair dealing. What is a reasonable portion depends on the material and the type of format it is in:
- literary works (except a computer program), dramatic works or musical works, or an adaptation of a literary, dramatic or musical work, that is contained in a published edition in a physical format of at least 10 pages, a reasonable portion is 10 per cent of the number of pages in the edition or, if the work or adaptation is divided into chapters, a single chapter
- literary works (except a computer program or an electronic compilation, such as a database) in an electronic form, a published dramatic work in electronic form or an adaptation of a a literary or dramatic work published in electronic, a reasonable portion is 10 per cent of the number of words in the work or adaptation or, if the work or adaptation is divided into chapters, a single chapter.
Where more than a reasonable portion of literary, dramatic or musical works is used, or artistic works or audio‑visual items are used, the Copyright Act outlines a number of fairness factors that will be regarded to determine if the use is fair. Those fairness factors are:
the purpose and character of the dealing
the nature of the work, adaptation or audio‑visual item
the possibility of obtaining the work, adaptation or audio‑visual item within a reasonable time at an ordinary commercial price
the effect of the dealing upon the potential market for, or value of, the work, adaptation or audio‑visual item, and
in a case where only part of the work or adaptation is reproduced or only part of the audio‑visual item is copied, the amount and substantiality of the part copied taken.
Criticism or review
Fair dealing also includes criticism or review. You can use works and adaptations of works, as well as audio‑visual items, for the purpose of criticism or review. The purpose of the criticism or review must be genuine. The criticism or review may relate to the work being used or to other material. When using the provision you must also acknowledge the author and title of the material.
Parody or satire
In 2006 Australia introduced fair dealing for the purpose of parody or satire where that use is fair. Under the provision it is not an infringement of copyright in a literary, dramatic, musical or artistic work, an adaptation of a work, or an audio‑visual item if the use is for the purpose of parody or satire.
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, periodicals and broadcasters can use works or audio‑visual items for the purpose of or associated with reporting the news, provided the use is fair. When using the provision they must also acknowledge the author and title of the work.
Other people can also rely on the provisions where their use of copyright material is for the purpose of or associated with reporting the news by means of a communication (such as by making it available online) or in a film. Although, the playing of music in the course of reporting news by means of a communication or in a film is not a fair dealing if the playing of the music does not form part of the news being reported.
Judicial proceedings or professional advice
Copyright in works and audio‑visual items are not infringed by anything done for the purposes of a judicial proceeding or of a report of a judicial proceeding. Giving professional advice by a lawyer where the use is genuinely for the purpose of giving advice, and provided the use is fair is also not an infringement.
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.