Fair dealing for criticism or review
Under s 41,
a fair dealing with a work or with an adaptation
of such a work (other than an artistic work)
does not constitute an infringement of the copyright
in the work if done for the purpose of criticism,
or review of that work or of another work.
Section 103A provides a similar fair dealing for an audio-visual item.
Also, the definition of "exempt recording" in s 248A(1)(fa)
allows live recordings and recordings of live broadcasts
of performances by way of fair dealings for the purpose
of criticism or review of that or another performance.
Fair dealing for reporting news
Under s 42(1),
a fair dealing with a work,
or with an adaptation of such a work (other than an artistic work)
does not constitute an infringement of the copyright
in the work if done for the purpose of, or associated with, reporting news.
The fair dealing can involve reporting news through the following mediums:
* a newspaper, magazine or similar periodical provided that a sufficient
acknowledgment of the work is made (s 42(1)(a)),
* in a cinematograph film (s 42(1)(b)),
* by means of a communication (s 42(1)(b));
Download .pdf
Fair Use and Other Copyright Exceptions
An examination of fair use,
fair dealing and other exceptions
in the Digital Age
Issues Paper
May 2005
Released From The Australian
Attorney Generals Department
05-05-05
Activities which don't infringe copyright
There are a number of situations in which people can use copyright material without permission.
The provisions in the Act which cover these situations (referred to as "defences" or "exceptions")
are mostly very specific. For example, there are provisions that allow reviewers and students to use
copyright material without permission provided their use is "fair".
There are also special provisions for copying by libraries, educational institutions and government bodies.
In some cases, certain procedures must be followed, and in some cases fees must be paid.
Copyright is not infringed if a work is used as a source of information or ideas, and the information or ideas are expressed in a new way in a new work. For example, writing a book based on a real event described in a newspaper article does not infringe copyright if the article is only used as one of the sources of information about the event. Permission not needed if using less than a "substantial part" You will not need permission if what you are using is not a "substantial" part of the copyright material. Even a very small part of the original may be a "substantial" part: there is no set percentage. The relevant question is whether what has been used is important, essential or distinctive to the original work. The "fair dealing" exceptions to infringement
There is no general provision in our Copyright Act allowing people to make "fair use" of copyright
material without permission. Rather, the law states that "fair dealing" with copyright material will
not infringe copyright if it is done for any of the following purposes:
* research or study;
* criticism or review;
* reporting news;
or
* professional advice by a lawyer, patent attorney or trade marks attorney.
What does "fair dealing" mean?
In this context, a "dealing" with copyright material means using the material in any of the ways
reserved to the copyright owner. Whether a person's use of copyright material is "fair" depends
on the circumstances of the case. In a recent case, the Federal Court stated that whether a dealing
is fair or not "is to be judged by the criterion of a fair minded and honest person".
Courts will look both at whether an objective viewer would consider that:
* the person is genuinely using the material for one of the purposes set out in the Act;
and
* their use of it is fair in that context.
Factors that may be taken into account in working out whether a use is "fair" include whether
the person using the material is doing so for commercial purposes, and whether the copyright
owner is out of pocket from the use (for example, where a person copies the whole of a work
that is available for sale). However, the mere fact that the person using the material is not
making a profit does not make it fair. In general, a person or organisation can only rely on a
fair dealing defence for his, her or its own use of copyright material. For example, it would not
be regarded as a fair dealing for criticism or review to reproduce a collection of photographs
and invite other people to critique the photographs. Rather, the person making the reproduction
must themselves be making the criticism or review.
Fair dealing for criticism or review
People can use copyright material for the purpose of criticism or review without infringing
copyright, provided they acknowledge the author and title of the work, and provided the
dealing is "fair". The criticism or review may relate to the work being used or to other material.
For example, television film reviewers may show clips from other films as well as the one they
are reviewing, in making their criticism or review. The Federal Court has stated that "criticism and
review" involves making a judgment of the material concerned, or of the underlying ideas.
Criticism and review may be strongly expressed, and may be expressed humorously, and need not be
balanced. The defence can apply where the criticism or review takes place in a commercial context,
such as in published books or newspapers or on commercial television. However, the Court
emphasised that the purpose of criticism or review must be genuine. If the person has other
motives-especially if these motives involve using the material to make a profit, or using a competitor's
material to divert customers from the competitor-the fact that they have also engaged in a form
of criticism or review is not enough to prevent the use from infringing copyright.
Fair dealing for reporting news
Copyright material may be used in reporting news in a newspaper, magazine or similar periodical,
or in a film, or by means of a broadcast. The author and title of the work must be acknowledged.
Music, however, cannot be included in news reports under this provision, unless the playing of the
music is part of the news being reported. (The use of music and sound recordings in this context
is usually covered by broadcasters' "blanket licences" from APRA and PPCA. For further information,
see our information sheet Copyright collecting societies.) The Federal Court has held that "news"
is not restricted to current events. For example, old material, or footage that was never related to a
current event, may be relevant to current news events. Alternatively, investigative journalists may
be able to use copyright material they have discovered that relates to past events under this provision.
In looking at whether a person's use of copyright material comes within the exception of fair dealing
for reporting news, courts are likely to require more than simply a connection with a newsworthy topic.
The crucial element in determining whether the exception applies seems to be whether the primary
purpose is to report or comment on news. Although courts have held that reporting news may involve
the use of humour, it seems that where a court considers the purpose of using the material is primarily
to entertain, the presence of newsworthy issues is not sufficient to make the use a fair dealing.
Judicial proceedings
The Act also states that copyright material may be used for the purposes of a judicial proceeding,
or reporting a judicial proceeding, without infringing copyright. There is no requirement in this
context that the use be "fair".
What is the difference between fair dealing under Australian law and fair use under US law?
In the US, a person may make a fair use of copyright material without infringing copyright.
The US Copyright Act lists purposes for which a fair use may be made: criticism, comment, news
reporting, teaching (including multiple copies for classroom use), scholarship, or research. Unlike
the position in Australia, however, the list is not exhaustive, so a person can make a fair use for a
purpose other than one of the listed purposes.
Purposes not listed in the Act, but held to be fair use, include:
parody, recording a television program for "timeshifting" purposes, and "intermediate" copying
of a computer program to produce an interoperable product. Whether or not a use is fair is
determined by reference to four factors, which are almost identical to four of the five factors in
Australian law for assessing whether a use for research or study is fair:
* the purpose and character of the use, including whether such use is of a commercial nature or is for
nonprofit educational purposes;
* the nature of the copyright work;
* the amount and substantiality of the portion used in relation to the copyright work as a whole;
and
* the effect of the use upon the potential market for or value of the copyrighted work.
For further information, see our information sheet G87 Access to copyright material in Australia
& the US.
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