Quotations and the need for a Fair Dealing Exception

For Copyright purposes, quotation is the use of a part of copyright material by someone other than the copyright owner. This is often written material, but it can also include use of other copyright material such as music or visual art. Quotations can be used for the purposes of explanation, illustration, commentary, authority and homage.

The issue:

● Quotation is needed – While quotation is possible in some circumstances under existing copyright exceptions, there are many socially beneficial uses of copyright material where quotation is not possible without risking copyright infringement. Australia needs a specific exception for quotation.

● Quotation is complex – Despite public expectation that quotation is permissible, the lack of certainty in the copyright law results in many copyright users seeking permission to quote material.

● Harm is low – The potential for harm when copyright material is quoted is low. Quoting
copyright material generally has no impact on the market for the copyright material
because it typically involves limited use of the original material and the quote is likely to be used noncommercially for a socially beneficial purpose.

● Benefits outweigh risks – Quoting copyright material serves important public interests, including supporting free speech, making academic research easier, enhancing education and supporting artistic expression and artistic freedom, as well as aligning with community expectations.

The Solution: 

The ALACC’s preferred solution is a stand-alone fair dealing exception for quotation. Such a scheme should:

● Apply broadly – The scheme should apply to any copyright material (including unpublished material), any users who quotes copyright material and any purpose or use of quoted materials (including publishing and making the quote public, commercial uses and, in appropriate circumstances, use of the whole quoted material).

● Include fairness factors – To support use of the exception, an exception for quotation
should consider matters such as the nature of the material, whether the material is
commercially available, whether the material was confidential, the potential effect on the market for the copyright material, the amount and substantiality of the part dealt with material used.

● Respect ICIP – Where a user intends to quote material that includes Indigenous Cultural Intellectual Property (ICIP) a user should consult with the relevant Aboriginal and Torres Strait Islander people or communities.

● Respect moral rights – Require the user quoting material to attribute the author of a work or maker of a film should an author or maker be identifiable and to the extent it is reasonably practicable to do so.

● Not limit existing exceptions – A quotation exception should not limit the extent to which any other exception permits quotation.