Explainer: Copyright and fair dealing

10 December 2012

Written by: Steinar Ellingsen

Thanks to flashy advertisements warning us that downloading a movie is the same as stealing a car, most people are now aware that using copyrighted material without permission is off limits.

However, something that has gained far less media attention is the concept of ‘fair dealing’, which effectively allows copyrighted material to be used without permission in certain circumstances.

Understanding this copyright law not only provides journalists with an increased understanding of when and how to use other people’s material in their stories, but also educates them on their rights as copyright producers.

Here are some frequently asked questions regarding this nifty little copyright defence.

What is fair dealing?

In Australia, using copyrighted material without the author’s expressed permission is illegal under The Copyright Act 1968. However, the Act also identifies certain circumstances where copyrighted material can be used legally. These exceptions are known as ‘fair dealing’ and allow journalists – or any other person – to use copyrighted material provided their use is ‘fair’ and falls under one of the exception categories.

So what are these ‘fair dealing’ exceptions? 

The Copyright Act allows you to use copyrighted material without permission if you are using the material for one of the following purposes:

How do I determine if my use is ‘fair?’

This is a tricky question because the courts will consider the unique circumstances of a case in deciding whether the use of copyrighted material was ‘fair.’ According to The Copyright Council, factors they may consider include ‘whether the person using the material is doing so for commercial purposes, and whether the copyright owner is out of pocket from the use – for example, where a person copies the whole of a work that is available for sale.’

I’ve heard I am allowed to use copyrighted material without permission if it’s for research or study purposes. Is this true?

The short answer is yes, because research or study is one of the fair dealing exceptions that allows a person to use copyrighted material without permission, so long as the use is ‘fair.’ Whether or not the use is fair is determined by a number of factors. The Copyright Council outlines these factors as the following:

– 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

– The effect of the dealing on the potential market for, or value of, the work

– 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

I’ve heard I am allowed to use copyrighted material without permission if it’s for criticism or review. What does this mean?

Journalists publishing reviews or criticism may use excerpts of copyrighted material when doing so, as long as they credit the copyright owner in their piece. According to The Copyright Council, the Federal Court has stated that criticism and review involves ‘making a judgment of the material concerned, or of the underlying ideas’ and that ‘criticism and review may be strongly expressed, and may be expressed humorously, and need not be balanced’. The courts have further stipulated that reviews must be genuine, i.e. copyrighted material is used purely for the purposes of drawing comparisons, conclusions or emphasising a point in a genuine criticism or review.

I’ve heard I am allowed to use copyrighted material without permission when reporting the news. Is this true?

The Copyright Act 1968 includes a fair dealing exception for the purpose of reporting the news, which means that journalists can use copyrighted material from other journalists or broadcasters in newspapers, magazines, by means of communication or in a cinematograph film as long as they give ‘sufficient acknowledgement’ to the copyright owner.

According to The Arts Law Centre of Australia, the courts have held that ‘reporting the news’ refers to:

– The reporting of recent events and can extend to information relating to past events not previously known;

– Is not restricted to the reporting of recent events, provided there is a genuine news component;

– Can relate to long term reviews or commentary.

In accordance with the decision reached in Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd, headlines are devoid of copyright and can therefore be used without permission from the copyright owner.

What constitutes parody or satire?

We’ve all seen shows like The Chaser or YouTube videos making fun of a particular piece of media such as Downwind Media’sWhere The Bloody Hell Are You?’ spoof of Australian tourism and culture. Both of these media forms use copyrighted material, and are able to do so due to the fair dealing defence of parody and satire. Unfortunately, the defence has not yet been tested by the Australian courts, which makes it hard to discern exactly what the defence entails. There is also no definition of ‘parody’ or ‘satire’ in The Copyright Act itself. However, The Macquarie dictionary defines the terms as:

‘Parody’ –

1. A humorous or satirical imitation of a serious piece of literature or writing.

2. The kind of literary composition represented by such imitations.

3. A burlesque imitation of a musical composition.

4. A poor imitation; a travesty.

5. To imitate (a composition, author, etc.) in such a way as to ridicule.

6To imitate poorly.

‘Satire’ –

1. The use of irony, sarcasm, ridicule, etc., in exposing, denouncing, or deriding vice, folly, etc.

2. A literary composition, in verse or prose, in which vices, abuses, follies, etc., are held up to scorn, derision, or ridicule.

3. The species of literature constituted by such composition.

Some legal experts have weighed in on the issue, suggesting that the introduction of this fair dealing defence is a positive step forward in Australia’s copyright laws. Dr Nicolas Suzor suggests that it will provide ‘much needed breathing space for Australian creators’ and that a ‘broad interpretation’ is needed in order to ensure that ‘some balance is returned to copyright law.’ An online legal checklist has also been provided by Dilanchian Lawyers & Consultants which could prove helpful for those wishing to use copyrighted material for the purpose of parody or satire.

Is fair dealing the same as fair use?

Although they might sound similar, fair use is not a term used in Australian copyright law. The fair use doctrine is actually part of the U.S. copyright law statute, and while it is quite similar to the Australian defence of fair dealing, it is important to note that the two are separate and are not to be confused.

Are there other circumstances where I can legally use copyrighted material?

Yes. How do you think Project Gutenberg gets away with unashamedly letting you download e-books for free? Why, it’s because the copyright of the works has expired of course. Copyright generally expires 70 years after the death of the author, which is why we can access books from authors such as Charlotte Bronte, Sir Arthur Conan Doyle and Jane Austen.

Copyrighted material can also be used legally  used if ‘less than substantial portion’ of the original material is used. What constitutes a ‘substantial portion’ is a matter for the courts to decide.

The famous ‘Panel Case’ (TCN Channel Nine v Network Ten) dealt with this particular issue after Channel Nine alleged that Channel Ten had breached copyright by rebroadcasting excerpts from Nine’s broadcasts on the Channel Ten show ‘The Panel’.

The resolution of this case ultimately suggests that the courts are more concerned with the quality of the piece that has been used, not the quantity, and factors such as potential economic harm to the copyright owner are likely to be taken into account.

Where can I find further information on fair dealing?

If you don’t feel up to delving through The Copyright Act itself, The Australian Copyright Council has devised its very own factsheets on fair dealing which are extremely useful. There’s even one specifically aimed at journalists.

The full list of upstart’s explainers can be found here.

Isabelle Laskari is a second-year Bachelor of Journalism student at La Trobe University. You can follow her on Twitter: @msisabellel.