Quotation and copyright law

9.8 In international copyright law, quotation refers to the taking of some part of a greater whole—a group of words from a text or a speech, a musical passage or visual image taken from a piece of music or a work of art—where the taking is done by someone other than the creator of the work.^[2]

9.9 However, in Australian copyright law, quotation is not a term of art.^[3] The Copyright Act does not provide a stand-alone exception for quotation. Rather, other concepts are used to govern whether a quotation infringes copyright.

Substantiality and fair dealing

9.10 The Act provides that an act will infringe copyright only if the act is done in relation to a ‘substantial part’ of a work or other subject matter.^[4] The phrase ‘substantial part’ has been held to refer to the quality of what is taken rather than the quantity, and courts have refused to prescribe any particular proportion as amounting to a substantial part.^[5] In determining whether the part taken is ‘substantial’, the most important question is whether the part is an ‘essential’, ‘vital’ or ‘material’ part, in relation to the work as a whole.^[6]

9.11 If a substantial part of the copyright material is ‘quoted’, infringement will generally occur unless the quotation is covered incidentally by the fair dealing exceptions for criticism or review; parody or satire; or news reporting.^[7] While in some cases, the copying of the whole of a work may be regarded as a fair dealing for the purpose of research or study,^[8] this is unlikely in other cases, such as criticism and review.

9.12 Some fair dealing exceptions list matters to be considered when determining whether the use constitutes a fair dealing.^[9] These matters include ‘the amount and substantiality of the part copied, taken or recorded in relation to the whole work, adaptation, item or performance’. In addition, 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.^[10]