If you wrote it, snapped it, drew it, composed it, or otherwise created a work – then (generally speaking) you own the copyright. Can someone else use it? What of the fair dealing exception – how does it operate?

Generally, someone else can only use your copyright material if you give them permission, usually by a license or an assignment.

What about fair use?

Fair use is a United States legal concept. It sets out exceptions to permit limited use of copyrighted material without acquiring permission from the copyright owner. Fair use does not apply in Australia.

What about fair dealing?

Now you’re talking! Fair dealing is the Australian equivalent of the United States concept of fair use.

The Copyright Act 1968 (Cth) sets out the fair dealing exceptions. According to these exceptions, under certain circumstances, you don’t have to have permission to use copyrighted material.

The fair dealing exception allows copyrighted material to be used in the following situations:

  • Research or study;
  • Criticism or review;
  • Parody or satire;
  • Reporting news; or
  • Professional advice by a lawyer, patent attorney or trademarks attorney

Fair dealing isn’t about whether you think it is fair to use it or not, it’s about whether it is fair based on the circumstances.

Research or study

The Copyright Act allows you to use parts of a copyrighted work for the purpose of research or study without permission, but only a limited amount.

For example, you can copy 10% of the pages if you want to reproduce text of a work that is at least 10 pages long.

If you want to use more than this, you will have to be able to show that your use is fair by considering why you are using the material, how much of it, and how substantial a part of it you are using. You also need to consider the nature of the work, how much skill was required to create it, and the effect on the value of the work as a result of your use.

Criticism or review

You are able to use copyright material for the purpose of criticism or review, as long as you acknowledge the author and title. You need to be clear that you intend to use the material for criticism or review, and not to make a profit from the material.

Parody or satire

If you are using copyright material for the purpose of parody or satire, you can rely on the fair dealing exception. The key requirement when it comes to parody or satire, is that you are making a commentary either on the work itself or its characteristics.

Note that just making it funny does not necessarily meet the requirements of this exception. On the other hand, your parody or satire does not have to be funny.

The courts will consider whether your use is fair to the copyright owner.

Reporting news

If the copyright material is being used to report news, you do not need permission. Here you would have to show that the primary purpose of using the copyright material is to report the news, not just that it has a connection with the news.

Professional advice

If copyright material is used for the purpose of giving professional advice – by a lawyer, patent attorney or trademarks attorney, then it falls within this exception and will not require permission. For example, you may come to LegalVision to complain that another business is using your logo, tag-line, or images, or copying the look and feel of your website. You would need to show us screen shots and images to back up your claim. You are not breaching their copyright if you are using their material for the purposes of getting professional advice from us.

Conclusion

For each of the fair dealing provisions, it is not as simple as saying, for example, “I’m using this material to report news”. In addition to establishing its purpose, you also need to show that the use is “fair” to the copyright owner by considering the circumstances of the use.

Has someone alleged that you have breached their copyright? LegalVision can help you. Please call our office on 1300 544 755 and our Client Care team will happily provide you with an obligation-free consultation and a fixed-fee quote.

Ursula Hogben

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