Fair Dealing

Disclaimer: This information is provided for general guidance only and does not constitute legal advice. You should always seek advice for your individual situation.

1. Overview of Fair Dealing

The Australian Copyright Act 1968 allows people to use copyright material without the copyright owner’s permission in certain situations. These include making a “fair dealing” for certain purposes. This should not be confused with the "fair use" defence in US copyright law, which can apply to use for any purpose.

A fair dealing with a copyright work, sound recording, film or broadcast will not amount to an infringement of copyright if done for the following purposes:

Whether an exercise of copyright rights amounts to a fair dealing is a matter to be determined on the facts of each case. Many factors may be taken into account, including whether the person using the material is doing so for commercial purposes, and whether the copyright owner is out of pocket from the use. However, the mere fact that the person using the material is not making a profit does not make it fair.

There is also provision in Section 49 the Act for you to request a library or archive to make copies on your behalf (or communicate a copy to you) of a fair dealing for research or study. You will be asked to make a declaration that it is a fair dealing.

2. Fair Dealing for research or study

You do not have to be enrolled in a course to rely on this exception. Staff conducting their own research (as opposed to preparing course materials for students) can rely on this exception for copying copyright material.

However, you cannot rely on this exception when it comes to publishing or communicating your work to the public. You will need copyright clearance for anything beyond an insubstantial quotation (or anything considered an exception under fair dealing for criticism or review) before it is published. This even applies to self-archiving on a website or in an online database or repository (including aCQUIRe - see the Publishing or Communicating Online for more details.

Research higher degree students cannot rely on this exception when putting their PhD or Masters by Research thesis on the Australasian Digital Thesis (ADT) database. This constitutes communication online, and therefore all copyright material must either be used with permission or be removed from public viewing prior to deposit.
See the Student Information page for guidance.

Similarly, a media student would need to seek permissions from the copyright owners for any copyright materials incorporated into an assessment piece, if that piece was to be subsequently played publicly, eg. at a Short Film Festival or put on a website.

The Copyright Act sets out a number of factors to be taken into account to work out whether the use of the material is “fair” for the purposes of research or study.

2.1 The 10%/One Chapter Rule - text & sheet music

s40 of the Act states if you are reproducing a literary, dramatic, musical or artistic work, it is deemed to be a fair dealing if you copy no more than a "reasonable portion".

A “reasonable portion” is defined with regard to literary works (excluding articles in periodicals), dramatic works or sheet music, contained in an edition at least 10 pages, as:

a) Not exceeding, in the aggregate, 10% of the number of pages; or
b) One chapter.

With regard to unpaginated works in electronic format (excluding computer programs or compilations such as databases), a reasonable portion may be defined as 10% of the number of words in the work, or one chapter.

Staff should refer to Copyright Bulletin #21   for further interpretation of the 10%/one Chapter rule.

No guidance is given in the Act on what constitutes a "reasonable portion" of works less than 10 pages in length, or of artistic works, or a musical works other than sheet music. To work out what is "fair" for these or for audio-visual items, refer to 2.3 below.

2.2 Articles contained in periodicals

The Act deems that it is a fair dealing to reproduce one article from a single issue of a periodical (eg. newspaper, magazine or journal); or more than one article if each article relates to the "same research or course of study".

2.3 Working out what is “fair" - all other material

For all other types of copyright material (other than those covered in 2.1-2.2 above), the Act does not state how much you may use without permission. Rather, you will need to consider whether it is "fair" to use the material.

The Act does set out some factors for working out whether, in all the circumstances, your use is fair in relation to reproductions of copyright material for the purpose of research or study. These are:

• the purpose and character of the dealing;
• the nature of the work;
• the possibility of obtaining the work within a reasonable time at an ordinary commercial price (eg., it may be fair to copy more than a reasonable portion of a literary work if it is not available commercially, ie. an out-of-print book);
• the effect of the dealing on the potential market for, or value of, the work; and
• in a case where part only of the work is copied, the amount and substantiality of the part copied in relation to the whole work.

3. 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 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.

4. Fair Dealing for certain purposes (s200AB)  

s200AB represents a significant shift in the way copyright materials may be used in Australia. Introduced from 1 January 2007, the Act now allows for a court to decide if a particular use should be possible without a copyright owner’s consent. This is similar to the US “fair use” defence, but is limited to the following ‘certain purposes’.

The intention is that s200AB provides a flexible exception to enable copyright material to be used for certain socially useful purposes while remaining consistent with Australia’s obligations under international copyright treaties. This provision might be determined by a court, for example, to allow a library or archive to make a use of a work where a copyright owner’s permission cannot be obtained because he or she cannot be identified or contacted, or an educational institution that wishes to continue using a teaching resource held in a form which has become obsolete and is not commercially available in a form appropriate for contemporary teaching technology.

sub-s 200AB provides that the copyright in a work or other subject-matter is not infringed by a use of the work or other subject-matter if ALL of the following conditions exist:

• the circumstances of the use amount to a special case;

• the use is made by or on behalf of a library or archive, an educational institution, or a person with a disability;

• the use does not conflict with a normal exploitation of the work or other subject‑matter; and

• the use does not unreasonably prejudice the legitimate interests of the owner of the copyright.

This section does not apply if other specific exceptions and statutory licences apply. This means that the University cannot claim access under s200AB as a way of avoiding the obligation to pay remuneration for the statutory licence under Part VB for Educational Institutions. However special cases which clearly fall outside the scope of Part VB limits may be able to be argued as non-infringing under s200AB.

If you want to reproduce or communicate in reliance of s200AB, please seek advice from the Copyright Officer first. All efforts to determine commercial availability and to seek permission from the copyright owner(s) should be exhausted before relying on this exception. It is recommended that the following Warning Notice be attached to any copies: