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Fair dealing

An exception to exclusive economic rights

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The fair dealing exceptions in the Copyright Act allow works, and sound recordings, films, sound broadcasts and television broadcasts (audio-visual items), to be used in certain circumstances and subject to certain conditions, without the permission of the copyright owner.

This section summarises the fair dealing exceptions most relevant to University staff and students.

Requisite purpose

A fair dealing exception should only be relied on if the person using the copyright material has the requisite fair dealing purpose. A fair dealing with works and audio-visual items for the following purposes will not infringe copyright:

Research or study

This exception only applies to dealings with works and audio-visual items for your own research or study (you cannot, for example, make multiple copies for distribution to your friends). You do not need to be enrolled in a course of study to rely on the exception.

Criticism or review

The Copyright Act allows fair dealing with a work or audio-visual item for the purpose of criticism or review, whether of that material or other material.

It appears that:
- criticism involves the evaluation or estimation of the qualities or character of the material, or the act of passing judgement as to the merits of the material
- review involves a critical article or report on material
- criticism or review may be of the underlying ideas in the material or the material itself
- criticisms and reviews do not need to be balanced and can be humorous
- the purpose of the criticism or review must be genuine
Parody or satire

The Copyright Act does not define the terms “parody” and “satire” so we suggest considering the dictionary definition when interpreting them.

It appears that a parody would be something that imitates a work or audio-visual item in a humorous way and, in doing so, may need to include parts of the material being parodied and comment in some way on the original material or the author of that material.

It also appears that a satire differs from a parody in that a satire would use a work or audio-visual item in such a way as to evoke irony, sarcasm or ridicule in relation to something (such as a vice or folly) that has nothing to do with the work or audio-visual item.

Access by a person with a disability

The Copyright Act enables dealings with works or audio-visual items if it is for the purpose of a person with a disability having access to the copyright material (whether the dealing is by the person with a disability or another person who assists them).

For more information and the factors to take into account when determining if the dealing is “fair”, see Assisting a person with a disability.

Dealing must be fair

In relation to a fair dealing with literary, dramatic or musical works for research or study, the Copyright Act deems certain copying of those works to be a fair dealing and, for any other copying of those works or for artistic works, provides guidelines on when such copying will be fair. However, these provisions do not apply to:
- dealings with works for research or study that do not involve copying
- other fair dealing exceptions
The Copyright Act provides separate guidelines on when dealings for research or study with audio-visual items will be fair.
Copying of works for research or study
- In relation to copying literary, dramatic or musical works for research or study, copying within the following limits will be deemed to be a fair dealing:
  - in the case of a literary, dramatic or musical work (except a computer program) contained in a published edition of at last 10 pages:
    
    10% of the pages in the edition; or
    
    if the work is divided into chapters, a single chapter
  - in the case of a published literary work in electronic form (except a computer program or an electronic compilation (such as a database)) or a published dramatic work in electronic form:
    
    10% of the words in the work; or
    
    if the work is divided into chapters, a single chapter
  If the work is available in both forms, you can choose which form to use and apply the relevant copying limits for that form. A person can only rely on the deeming provisions once for any particular published literary or dramatic work.
  
  If you want to copy more than this, or these limits do not cover what you want to copy (eg artistic works), all the circumstances need to be considered to determine if the dealing is fair, including:
  - 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
  - if only part of the work is copied, the amount and substantiality of the part taken in relation to the whole work
  Copying all or part of a literary, dramatic or musical work contained in an article in a periodical publication (eg journal, newspaper, magazine) for research or study is deemed to be a fair dealing. More than one article from the same publication can be copied provided each article is for the same research or course of study.
Dealings with audio-visual items for research or study
- Factors to be taken into account in determining whether a dealing with an audio-visual item is a fair dealing for research or study include:
  - the purpose and character of the dealing
  - the nature of the audio-visual item
  - the possibility of obtaining the audio-visual item within a reasonable time at an ordinary commercial price
  - the effect of the dealing on the potential market for, or value of, the audio-visual item
  - if only part of the audio-visual item is copied, the amount and substantiality of the part taken in relation to the whole item
Dealings for purpose of access by persons with a disability
- For the factors to take into account when determining whether a dealing for the purpose of access by persons with a disability is “fair”, see Assisting a person with a disability
Other dealings
- In relation to:
  - dealings with audio-visual items that are not for research or study but are for one of the other fair dealing purposes;
  - dealings with works for research or study that do not involve copying the works; and
  - the other fair dealing exceptions,
  that are not dealings for the purpose of access by persons with a disability, the Copyright Act does not provide any guidance on how to determine whether or not a dealing with the copyright material is fair. The actual assessment will depend on the circumstances of each case, some factors to consider include:
  - the purpose and character of the dealing
  - the nature of the copyright material
  - the possibility of obtaining the copyright material within a reasonable time at an ordinary commercial price
  - the effect of the dealing on the potential market for, or value of, the copyright material
  - if only part of the copyright material is dealt with, the amount and substantiality of the part taken in relation to the whole of the copyright material

Sufficient acknowledgment and moral rights

To rely on the fair dealing for criticism or review exception, there must be sufficient acknowledgement of the copyright material used. The Copyright Act provides that "sufficient acknowledgement" in relation to a work, means an acknowledgment identifying the work by its title or other description and, unless the work is anonymous, pseudonymous or the author does not want to be acknowledged, the author’s name.

The University recommends that as minimum this level of acknowledgment is used for all copyright material used under the fair dealing exceptions. In addition, the moral rights obligations must be complied with.

Published editions

If a dealing with a work does not infringe copyright under a fair dealing exception for works, the copyright in the published edition of the work is not infringed by making a copy of all or part of that edition.

This information is provided as general information only. It provides a basic introduction to copyright and is not intended to be comprehensive.

Reviewed December 2017

Fair dealing

Research or study

Criticism or review

Parody or satire

Access by a person with a disability