Copyright Fair Dealing in Australia

Author: Ian Aldridge, Progressive Legal

Whilst the general position is that you require authority to use copyright protected works, the fair dealing provisions under the Copyright Act 1968 (Cth) (“the Act”) allow the use of copyright protected material without the permission of the copyright owner.  

This has particular relevance if, for example, you create content on Youtube, you will want to know why some of your content may not be removed, whilst some content is declared to be an infringement of copyright.  

On this page, we’ll provide a brief overview of the Fair Dealing exceptions in Australia.  

What is Fair Dealing? 

Often, people will use “Fair Use” and “Fair Dealing” interchangeably. However, the former is a defence under US copyright law, whilst the latter is used to describe the exceptions that exist under Australian copyright law.  

Sections 40 – 42 of the Act outline the fair dealing exceptions in relation to “works”, these are: 

1. Section 40: Fair Dealing for the purpose for research or study.  
2. Section 41: Fair Dealing for the purpose of criticism or review.  
3. Section 41A: Fair Dealing for the purpose of parody or satire. 
4. Section 42: Fair Dealing for the purpose of reporting news.  

Each of these exceptions will be considered in turn.  

(NB: sections 40-42 only relate to “works”. For “subject matter other than works”, sections 103A-C mirror the above sections. Further, s 113E of the Act provides that a fair dealing with copyright material does not infringe copyright if the dealing is for the purpose of one or more persons with a disability having access to the material (s 113E(1)).  

Fair Dealing for the Purpose of Research or Study  

Section 40(1) of the Act provides that a “fair dealing” of a work for the purpose of research or study, it is not an infringement of the copyright in the work. 

As a general rule, you are allowed to use a “reasonable” amount of copyrighted material for the purpose of research or study. When considering whether the use of a work is a fair dealing, section 40(2) provides the matters which shall be taken into account. These are: 

1. what was the purpose and character of the dealing?;  
2. what was the nature of the work or adaptation?;  
3. what was the possibility of obtaining the work within a reasonable time at an ordinary commercial price?;  
4. what was the effect of the dealing on the potential market for the value of the work or adaptation?; and  
5. if only a small part was taken, how substantial was that part to the overall work? 

Despite the section 40(2) factors, the ultimate factor of which you should be wary is how much of the material you are using in your work. Section 40(5) sets out the following table which has been reproduced for clarity:  

It is important to note that the above table only applies to the use of copyright protected works for the purpose of research or study. 

Fair Dealing for the Purpose of Criticism or Review

Section 41 of the Act provides that you can use a copyright protected works for the purpose of criticism or review and a sufficient acknowledgement of the work is made. Such acknowledgement should identify the author and the work, by title or description, from which the excerpt was taken.  

It is also important that you are actually engaging in a criticism of the work, and as such the actual purpose of the critical work is vital. In TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (2001) the primary judge noted the following principles with respect to criticism and review: 

1. the words ‘criticism’ and ‘review’ should be interpreted liberally;  
2. criticism and review involve the passing of judgement;  
3. criticism and review must be genuine in the sense they are not under the pretence of another purpose; and 
4. hidden motives will disqualify reliance on s 41, especially where the infringer is a trade rival who is using the material for its own benefit.  

Fair Dealing for the Purpose of Parody or Satire 

Section 41A of the Act provides that you can use a copyright protected works if it is for the purpose of parody or satire. The difference between parody and satire may matter. For instance, the former may require humour, whilst the latter may require criticism. 

Nevertheless, the exception can only be relied upon if the parody or satire is the legitimate purpose of the author. For instance, a purely commercial purpose will preclude you from relying on the exception. A notable example is the case of Pokemon v Redbubble (2017) where it was held that clothing which had a likeness to some characters was created for commercial purposes, even with its slight parody of the character.  

Fair Dealing for the Purpose of Reporting News  

Section 42 of the Act provides that the use of copyright protected works will not be an infringement of copyright if: 

1. it is for the purpose of reporting news in a newspaper, magazine or similar periodical and a sufficient acknowledgment is made; or 
2. it is for the purpose of reporting news by a means of communication or in a cinematograph film.  

However, if you are playing music it is not a fair dealing for the purposes of section 42 if the music is not part of the news being reported. As such, you need to ensure that reporting news is your primary purpose and the material you are using is a necessary part of reporting such news, rather than something you add on for say, the sake of cinematics.  

Key Takeaways

If you’re someone who uses copyright protected material on a regular basis to create content, it is important to be mindful of how much you use, and whether you could avail yourself of an exception if someone claims you have infringed their IP. In doing this, you should ask yourself the following questions: 

1. what material am I using, and who is the true copyright owner?;  
2. how much of the material am I using?; and  
3. am I using this material for my own gain? 

If you require further copyright advice in relation to fair dealing in Australia, contact our team at Progressive Legal. All you have to do is make an enquiry below, or contact our office on 1800 820 083.  

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