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Copyright protects a wide range of creative works, including books, songs, scripts, artwork software and much more. Because copyright protects so much creative material, it is important to understand its importance. For example, copyright protection means that you cannot use copyright protected work without permission. Doing so constitutes infringement, which can carry legal penalties. Therefore, you may be wondering when it is legal to use somebody else’s work in your own. There are some exceptions to copyright infringement that you can benefit from if you want to use copyright protected material for certain approved purposes. For guidance, this article outlines circumstances where you can use copyright protected material without violating copyright. 

Copyright Law 

Copyright is the protection of the expression of ideas and concepts. In Australia, copyright protection is a free and automatic right. There is no requirement to apply a copyright notice on creative material. Instead, copyright protection comes into existence once the work is put into material form.

For example, copyright cannot protect the general plotline of your book. It can, however, protect the actual manuscript of the book itself once you write it down.

Copyright laws give owners of copyright enforcement powers against infringers. If you choose to copy someone else’s work, this may constitute copyright infringement. If you make a video and use a song without permission, this infringes the song owners copyright protections. Therefore, you must understand copyright and ensure that you use creative works with permission from the owner.

Copyright Licences

You may come across an image, piece of writing, or creative concept that you would like to use in your business for advertising purposes. However, if you do not gain permission to use the work, this may constitute copyright infringement.

To avoid this, consider gaining a copyright licence. This is permission from the owner to use the work, usually for a price and in line with terms that the owner sets. 

When obtaining a copyright licence, it is important to:

  • get everything in writing;
  • make sure the creator, or original owner you are negotiating with, understands the implications of the licence you are proposing;
  • follow the terms set out in the licence, as not doing so will constitute copyright infringement.

Fair Dealing Exceptions

The Copyright Act includes the ‘fair dealing exception’, which allows the use of copyright material for the following purposes:

  • research or study;
  • criticism or review;
  • parody or satire; and
  • reporting the news.

If your usage falls into one of these categories, you may not need a copyright licence to use the work. However, your usage must be fair, which we explain in the sections below.

Research or Study

You can use previously published research or study, but you can only use a certain amount. You can only use a ‘reasonable portion’ of previously published research as part of fair dealing.

Generally, the following amounts will constitute fair dealing:

  • an article from a periodical; or
  • if ‘work’ published as edition: 10% of pages or a chapter; or
  • if ‘work’ in electronic form: 10% of words or a chapter.

If what you are copying is more than the portions outlined above, you should consider whether the overall use is fair dealing. Courts will consider the purpose and character of the work, the nature of the original work and whether the work was accessible at a fair commercial price when deciding what constitutes fair use, so keep these factors in mind when using work for academic purposes.

Criticism or Review

If you are using copyright material for criticism or review, you must acknowledge the original creator appropriately. This means identifying the author and citing the reference to the material. 

The criticism or review may relate to reviewing other material. For example, a movie or television reviewer may show clips of the work they are reviewing. The main purpose of the activity must be genuine criticism or review of the work.

For example, suppose a business promoted themselves with a television advertisement that uses a competitors material. They point out and criticise the differences between the two products. This is criticism of the competitor’s product but is not a defence against copyright infringement. This is because the primary purpose of the advertisement was commercial, not to criticise or review.

Parody or Satire

Parody or satire is the humorous adaptation of an original concept through inference or imitation. This is an acceptable exemption of copyright infringement as long as it does not directly reproduce the original work. This exemption can be complicated, as you can only use it if parody or satire is the legitimate purpose of the new work. You cannot simply profit from the original work’s popularity (i.e. produce something for commercial purposes and not satirical purposes). 

It is worth noting that the ‘fair dealing’ exemption does not affect the original creator’s right to take legal action if they believe the work has been treated in a derogatory way, infringing their moral rights over the work. 

Reporting the News

The news can come in many different forms, including through physical newspapers and magazines or online mediums. An exemption to copyright infringement is fair dealing for news reporting, which includes when the use:

  • constitutes reporting recent events, or providing new information on past events;
  • involves a genuine news component; and
  • relates to reviews or commentary. 

In reviewing what ‘fair’ concerning news reporting is, the main element to consider is whether the primary purpose is to report or comment on the news. For example, if the primary purpose is more entertaining than newsworthy, then this may not be sufficient as ‘fair dealing’. 

Key Takeaways

If you want to use somebody else’s creative material, you have options. Obtaining permission from the owner is always the best option, but you can also rely on the fair dealing exception if your work qualifies. Copyright infringement comes with significant legal penalties, so ensure that you are using these exemptions correctly. If you have any questions about exemptions to copyright infringement, contact LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.

Frequently Asked Questions

What does copyright protect?

Copyright protects the material copy of many types of creative works, including artworks, writing and more. It does not, however, protect the idea behind the work.

What is the fair dealing exception?

If your work falls into certain categories and your use of the copyright is fair, you do not need a copyright licence. These categories are research and study, criticism and review, parody and satire and reporting the news.

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