What is the Flexible Dealing Exception to Copyright?

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Table of Contents

• Flexible Dealing Explained
• When Flexible Dealing Applies
• Key Takeaways

In most cases you can’t use another person’s copyright material without permission. If you do, they might send you a cease and desist letter. However, the Copyright Act also allows some exceptions where you do not need the owner’s consent. For example, if you’re a teacher showing a short film clip to your students for educational purposes. One of these exceptions is ‘flexible dealing’. This article explains how the flexible dealing exception works. 

Flexible Dealing Explained

Flexible dealing allows a person or organisation to use copyright material without the permission of the original owner. This exception was introduced for the benefit of:

• educational institutions;
• museums;
• archives;
• libraries;
• collecting institutions; and
• people with a disability.

The exception makes Australia’s cultural collections more accessible for educational, cultural and research purposes. For example, by allowing libraries to convert books to audio for the benefit of the blind. 

Flexible dealing is not limited to a specific purpose, making it different to other exceptions under the Copyright Act. For example, another exception is fair dealing. However, fair dealing is limited to defined specific purposes, such as allowing copyright material to be used for parody or satire. In contrast, flexible dealing is broader, focusing more on whether the use is acceptable in the specific circumstances.

When Flexible Dealing Applies

If you work for one of the institution types named above, or you are a person with a disability that makes it hard to read, see or hear material in a particular form, you may be eligible to use copyright material without permission. However, the exception only applies if you can satisfy the following five steps:

1. No Other Exception Applies

You will need to check that the intended use is not covered by another exception under the Copyright Act, such as fair dealing or educational use. If so, you can still use the material, it just will be covered by a different exception.

2. Reproducing the Work is Non-commercial

Non-commercial generally means not-for-profit. The rule is that the use cannot be partly or wholly for the purpose of a commercial advantage or making a profit. For example, selling a work for a higher price than what it cost to obtain. It is acceptable, however, to charge a cost-recovery fee, such as a late fee at a library. This is not commercial use.

3. The Use is a Special Case

The use must be ‘exceptional’. Generally, this means it must be narrow and specific, with defined limitations. You must only use as much of the material as is necessary for the purpose. This may involve restricting public access to the material in some way. For example, by using passwords if you are an online library or university.

4. The Use Does Not Conflict with a Normal Exploitation of the Material

The use must be fair and reasonable and not interfere with the normal rights of the copyright owner to make a profit off the work. It’s a good idea to ask if the use would be something the owner would normally charge for. If so, flexible dealing may not apply. 

5. The Use Does Not Unreasonably Prejudice the Copyright Owner

This rule looks at some of the broader concerns a copyright owner may have. For example, whether the use:

• respects privacy and cultural sensitivity;
• gives attribution to the owner; and
• is appropriate for the material.

The flexible dealing provision is quite complex. Therefore, before relying on the exception, it’s worth seeking legal advice about whether it may cover a proposed use.

Key Takeaways

The flexible dealing provision allows libraries and other institutions more flexibility when using copyright material. However, each time you want to use the exception, you must consider the five steps outlined in this article. Whether the proposed use satisfies these steps will depend on the type of work, the nature of the material and even the length of time of the proposed use. 

If you need advice on whether the flexible dealing exception applies to your use of copyright material, call LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.