Current law

7.4 Australia’s copyright legislation has long provided for fair dealing. Australian legislation first used the expression ‘fairly dealing’ in its Copyright Act 1905 (Cth)—the first common law country to do so.[4] Subsequent Acts—the Copyright Act 1912 (Cth), which declared the Copyright Act 1911 (Imp) to be in force in Australia[5] and the current Copyright Act which replaced the 1912 Act—use the term ‘fair dealing’. These latter two Acts, including amendments to the current Copyright Act,[6] have instituted a list of specific exceptions under the fair dealing rubric.

7.5 The Copyright Act does not define a fair dealing. Rather, specific fair dealing exceptions exist for the purposes of:

  • research or study;[7]
  • criticism or review;[8]
  • parody or satire;[9]
  • reporting news;[10] and
  • a legal practitioner, registered patent attorney or registered trade marks attorney giving professional advice.[11]

7.6 Not all of these exceptions are available for all types of copyright material. The Copyright Act provides that fair dealings for these specified purposes may be made with the following copyright material:

  • literary, dramatic, musical or artistic works;[12]
  • adaptations of literary, dramatic or musical works;[13] and
  • audio-visual items[14]—defined as sound recordings, cinematograph films, sound broadcasts or television broadcasts.[15]

7.7 Where the use of a ‘substantial part’[16] or more[17] of the work, adaptation, or audio-visual item constitutes a fair dealing, there is no infringement of the copyright in that specific copyright material. Further, in the case of an audio-visual item, there is no infringement of the copyright in any work or other audio-visual item that is included in that audio-visual item.[18]

7.8 Additionally, the Copyright Act provides that certain direct or indirect sound recordings or cinematograph films of performances, which constitute fair dealing for specified purposes, are outside the scheme affording protection to performers in their live performances.[19] That is, the use of those recordings and films of the performances are permitted as exceptions.

When will a use be a fair dealing?

7.9 Determining whether a use comes within the bounds of a fair dealing exception is a two-step process. First, the use must be for one of the specific purposes provided for in the Copyright Act. Secondly, the use must be fair. Whether a particular use is fair will depend on the circumstances of the case.

Requirement to provide sufficient acknowledgement

7.10 The fair dealing provisions for the purpose of criticism or review, and those for the purpose of, or associated with, the reporting of news in a newspaper, magazine or similar periodical contain an additional requirement for a ‘sufficient acknowledgment’ of the work or audio-visual item.[20]

Quantitative test

7.11 The fair dealing exception for the purpose of research or study with respect to works and adaptations contains a quantitative test that deems the use of certain quantities of copyright material to be fair.[21] The concept of ‘reasonable portion’ is fixed by reference to chapters, or 10% of the number of pages or number of words.[22]

General guidance as to fairness

7.12 The fair dealing exceptions for the purpose of research or study and s 248A(1A) (indirect sound recordings of performances) are the only exceptions that list matters to be considered when determining whether the use constitutes a fair dealing. These matters include, but are not limited to:

  • the purpose and character of the dealing or recording;

  • the nature of the work, adaptation, audio-visual item or performance;

  • the possibility of obtaining the work, adaptation, audio-visual item or an authorised recording of the performance within a reasonable time at an ordinary commercial price;

  • the effect of the dealing or recording upon the potential market for, or value of, the work, adaptation, audio-visual item or authorised recordings of the performance; and

  • in a case where part only of the work, adaptation, audio-visual item or performance is reproduced, copied or recorded—the amount and substantiality of the part copied, taken or recorded in relation to the whole work, adaptation, item or performance.

7.13 In 1976, the Copyright Law Committee which considered reprographic reproduction (the Franki Committee) recommended that this list of matters—with respect to works and adaptations—be included in s 40.[23] The matters listed are based to a large extent on principles derived from the case law on fair dealing.[24] The list of matters in ss 40(2) and 103C(2) are not the only relevant matters for assessment of the fairness of a dealing for the purpose of research or study, as these are inclusive rather than exhaustive lists.[25] The Franki Committee observed that it is for the courts to decide whether particular uses of copyright material constitute fair dealing and it was of the opinion that it would be ‘quite impracticable’ to attempt to remove this duty entirely.[26]

7.14 One submission noted that the Australian approach with respect to the other fair dealing exceptions has been ‘to leave it completely to the courts to determine what factors are relevant to determining fairness in any particular case’.[27] Another remarked that there was ‘remarkably little useful guidance’ to be gleaned from the Australian case law and, in effect, one is ‘forced to look to old English precedents to try to determine what factors a court would be likely to look to when deciding whether a use would be fair’.[28]

7.15 The Copyright Law Review Committee (CLRC) suggested that it is ‘reasonable to assume’ that the matters listed in the statute ‘are also relevant in determining the fairness of a dealing for purposes other than research or study’.[29] This is because the matters in s 40(2) were derived from principles in the case law and because those principles were not limited to a specific purpose.[30]

To whom do the exceptions apply?

7.16 Unlike some other exceptions in the Copyright Act and the statutory licences, the fair dealing exceptions appear on their face to be available to any users of the copyright material provided that their particular use—or ‘dealing’—falls within the bounds of one of those exceptions. A number of submissions were critical of court interpretations—particularly De Garis v Neville Jeffress Pidler Pty Ltd[31]—confining the availability of the exceptions.[32] As Universities Australia explained:

On the current state of the law with respect to fair dealing—which directs a court to look to the purpose of the person making the copy rather than the actual user of the copy—the ‘maker’ of the copy ... may not be in a position to claim the benefit of the fair dealing exception.[33]

[4] M De Zwart, ‘A Historical Analysis of the Birth of Fair Dealing and Fair Use: Lessons for the Digital Age’ (2007) 1 Intellectual Property Quarterly 60, 89.

[5] Thomson Reuters, The Law of Intellectual Property: Copyright, Designs and Confidential Information, [3.360].

[6] The most recent amendment to note in this regard is the Copyright Amendment Act 2006 (Cth) which introduced fair dealing exceptions for the purpose of parody or satire.

[7]Copyright Act 1968 (Cth) ss 40(1), 103C(1).

[8] Ibid ss 41, 103A.

[9] Ibid ss 41A, 103AA.

[10] Ibid ss 42, 103B.

[11] Ibid s 43(2). Note s 104(c), which could be seen as the equivalent provision for subject-matter other than works, does not in fact use the term ‘fair dealing’. Similarly, ss 43(1), 104(a) (anything done for the purposes of a judicial proceeding or a report of a judicial proceeding) and 104(b) (someone seeking professional advice from a legal practitioner, registered patent attorney or registered trade marks attorney) do not use the term ‘fair dealing’. All of these exceptions are broader than the fair dealing exceptions.

[12] Ibid s 40(1) (research or study), s 41 (criticism or review), s 41A (parody or satire), s 42 (reporting news), s 43(2) (the giving of professional advice by certain individuals).

[13] Ibid s 40(1) (research or study), s 41 (criticism or review), s 41A (parody or satire), s 42 (reporting news).

[14] Ibid s 103C(1) (research or study), s 103A (criticism or review), s 103AA (parody or satire), s 103B (reporting news).

[15] Ibid s 100A.

[16] Ibid s 14.

[17] As Ricketson and Creswell observe, ‘acts done in relation to insubstantial parts do not constitute infringement of copyright and the defences of fair dealing only come into operation in relation to substantial parts or more’: Thomson Reuters, The Law of Intellectual Property: Copyright, Designs and Confidential Information, [11.15].

[18]Copyright Act 1968 (Cth) s 103A (criticism or review), s 103AA (parody or satire), s 103B (reporting news), s 103C(1) (research or study).

[19] Such recordings and films come within the definition of ‘exempt recording’. Ibid s 248A(1)(aa), (f), (fa), (g). See also s 248A(1A) which contains a list of matters—which is in largely the same form as the factors in ss 40(2) and 103C(2)—which must be regarded when determining whether a recording is a fair dealing for the purpose of research or study under s 248A(1)(aa). One important difference is that ss 40(2) and 103C(2) are stated to be inclusive lists, whereas the language of s 248A(1A) is not so clear.

[20] Ibid ss 41 and 103A (criticism or review); ss 42(1)(a) and 103B(1)(a) (reporting news).

[21] See Ibid s 40(3)–(8).

[22] See Australian Copyright Council, Research or Study: Information Sheet G053v08 (2012) <www.copyright.org.au/find-an-answer/browse-by-a-z/> at 27 July 2012.

[23] Copyright Law Committee, Report on Reprographic Reproduction (1976) (Franki Report), [2.60]. One possible reason why the Franki report did not recommend that these factors specifically apply to the other fair dealing exceptions may be due to the fact that the Franki Report was confined to investigating reprographic reproduction: M Sainsbury, ‘Parody, Satire and Copyright Infringement: The Latest Addition to Australian Fair Dealing Law’ (2007) 12 Media and Arts Law Review 292, 306.

[24] Thomson Reuters, The Law of Intellectual Property: Copyright, Designs and Confidential Information [11.35]; Copyright Law Review Committee, Simplification of the Copyright Act 1968: Part 1: Exceptions to the Exclusive Rights of Copyright Owners (1998), [4.09].

[25] Other factors may also be relevant. For example, Michael Handler and David Rolph have suggested seven factors which may assist a court in determining the fairness of a particular dealing; not all will be relevant in every case. M Handler and D Rolph, ‘“A Real Pea Souper”: The Panel Case and the Development of the Fair Dealing Defences to Copyright Infringement in Australia’ (2003) 27 Melbourne University Law Review 381, 418.

[26] Copyright Law Committee, Report on Reprographic Reproduction (1976), [2.59].

[27] Copyright Advisory Group—Schools, Submission 231.

[28] R Burrell and others, Submission 278.

[29] Copyright Law Review Committee, Simplification of the Copyright Act 1968: Part 1: Exceptions to the Exclusive Rights of Copyright Owners (1998), [4.09]. Later, at [6.36], the CLRC also referred to comments to similar effect made by Professors Ricketson and Lahore in each of their loose-leaf services.

[30] Ibid, [4.09].

[31]De Garis v Neville Jeffress Pidler Pty Ltd (1990) 37 FCR 99, 105–6.

[32] For example, R Burrell and others, Submission 278; Universities Australia, Submission 246. See also Ch 5.

[33] Universities Australia, Submission 246.