Fair dealing

The Copyright Act contains some special provisions that enable individuals to copy materials for certain limited purposes, without having to apply for permission from (or pay a fee to) the copyright holder. Note that the 'fair dealing' provisions under Australian law are not the same as the 'Fair Use' provisions which operate within the copyright law of the United States.

There are a few distinct purposes provided for under the 'fair dealing' allowance in the Act but in all cases, the dealing will only be 'fair' if at a clear and adequate source citation and proper acknowledgment of the author or creator of the original work is also provided (unless the author/creator is anonymous or has specifically declined to be named).

Fair dealing for the purposes of research and study

There is no infringement of copyright in a third-party work if researchers/students copy the work for their own research and study needs, such as

Preparing an article, book chapter, conference presentation
Copying to maintain your general reading / current awareness of your research field
Copying material in the process of conducting research, or for preparation of an assignment or thesis
Email correspondence between students or researchers involved in a collaborative project may also be deemed fair depending on how extensive the dissemination is.

What is fair?

Here are a few guidelines to help you decide whether your intended copying is fair:

What sort of content are you copying (is it part of a published book? An unpublished photo? Part of a feature film? Something from TV?)
How much are you copying? The amount and 'substantiality' of what you are copying is significant in terms of what may be deemed fair. the Copyright Act has indicted some 'fair' amounts in relation to text works (basically 10% of the pages or 1 chapter of a book; or one single article from an issue of a newspaper or journal)
What do you intend to do with content you are copying?
Could you have bought the same item within a reasonable time at an ordinary commercial price?
Will your copying affect the potential market for, or value of, the content
How many people will have access or receive the copy/copies? Email correspondence between students or researchers involved in a collaborative project may be fair but broad communication to a large group of people probably exceeds 'fair'.

'Fair dealing' generally won't cover:

Making multiple copies (especially if destined for others): this is unlikely to be considered 'fair'.
Selling your copy: you probably won't be able to rely on 'fair dealing' if you intend to sell the copy or copies you make
Online use: only the most limited kind of online use (or 'communication') could be covered by this 'fair dealing' provision. An email to a colleague might be considered fair but making the copied content available on a website would probably NOT be deemed fair.
Publication: publishing or distributing substantial amounts or someone else's work, even if embedded in your own, will not generally be seen as a 'fair dealing'. Very limited amounts of text may be quoted or reproduced from the works of others (without permission), but only on the basis that you are criticising or reviewing them at that point in your own work (see below).
Copying commercial films, DVDs, CDs, software, and the like: be especially prudent when making any kind of copy from these types of items as there is no guidance in the Act as to what amount would be considered fair. These types of items are 'high risk' items to copy, given that they are often commercially available (and at a price deemed reasonable by the market!).

'Fair dealing' for the purposes of criticism or review

The ‘fair dealing’ allowance in the Copyright Act does permit a researcher/author to use (reproduce or adapt) a copyright work without permission, for the purpose of criticism and review. Note however, that this 'fair dealing' allowance doesn't operate as a blanket protection for any or all third-party content which may be included in a research publication or book.

Once a work is published, 'fair dealing' operates in a much more limited way. For example, an author may rely on 'fair dealing' for the inclusion of limited amounts of another's work, on the grounds that those particular quotations or small excerpts have been reproduced specifically in order to review and critique them at that particular point in the text.

Other examples of fair dealing for the purposes of criticism and review may include

a student copying parts of a text into an assignment or thesis in order to comment upon it
a university lecturer copying part of a film to be played at an academic conference for the purpose of commenting critically on the film.

Using unpublished materials

Researchers need to exercise even greater care when their publications include extracts from unpublished materials, especially if access to, and use of, those materials was granted 'in confidence' and on the basis that they would only be used for private research and study, or for the purposes of examination of the thesis. In such cases, the actual act of publishing such material may not be considered a 'fair dealing'.

'Fair dealing' for parody and satire

Students, authors, creators and performers may also rely on this new purpose of 'parody and satire', when reproducing a third-party copyright work. This new aspect was added to the overall 'fair dealing' allowance in 2006.

Be warned, however, that the extent to which one may rely on this new allowance when reproducing another's work is subject to considerable interpretation and is untested under Australian law.

Advice from the Australian Copyright Council suggests that the following factors (among others) would be considered when deciding if an activity was indeed a 'fair dealing for the purposes of parody and satire':

Whether the activity concerned (in which the reproduction of another's work occurs) actually falls within the definition of parody and satire (ie both elements may be required)
How much of the third-party work is reproduced or used in the 'parody and satire'
The context in which the parody and satire occurs (ie degree of exposure; size of audience/readership etc)
Whether the copyright owner of the material being parodied would normally licence such uses

Note also that reliance on 'fair dealing for parody and satire' will not protect you from claims of breach of an author/creator's moral rights if they deem you use of their work to be derogatory or prejudicial to their reputation.

For further information refer to the Australian Copyright Council information sheet about Parodies satires and jokes (G083v03; January 2008)