10.87 In copyright terms, 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.[107]

10.88 The Copyright Act does not provide a stand-alone exception for quotation. However, copyright infringement is generally dependent on use of a substantial part of copyright material. That is, the Act provides that an act will infringe copyright only if the act is done in relation to ‘substantial part’ of a work or other subject matter.[108]

10.89 The phrase ‘substantial part’ has been held to refer to the quality of what is taken rather than the quantity, and courts have always refused to prescribe any particular proportion as amounting to a substantial part.[109] In determining whether the quality of what is taken makes it a ‘substantial part’, a number of factors are relevant, the most important being a general inquiry into the importance that the part bears in relation to the work as a whole—that is, whether it is an ‘essential’ or ‘vital’ or ‘material’ part.[110]

10.90 Some quotation may be covered incidentally by existing exceptions—in particular, fair dealing for criticism or review; parody or satire; and news reporting.[111] The coverage of quotation is incidental in that a quotation will not be fair dealing unless it is for a fair dealing purpose, such as criticism or review. 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,[112] this is unlikely in other cases, such as criticism and review.

10.91 The Issues Paper noted suggestions that art 10(1) of the Berne Convention could be employed in Australia as the basis for a new exception for non-commercial transformative use; an exception permitting the quotation of copyright works in commercial works;[113] or an exception for fair dealing for the purpose of quotation.[114]

10.92 Article 10(1) of the Berne Convention provides:

It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.[115]

10.93 Article 10(1) is generally considered to impose an obligation to provide an exception for fair quotation,[116] rather than just permitting such an exception, although this was contested by some stakeholders.[117]

10.94 The ‘quotation right’ provided for by the Berne Convention[118] is not limited to text-based copyright material. The word ‘work’ is used to encompass all the types of works that are listed in art 2. That is, literary and artistic works (including, for example, dramatic works, choreographic works, cinematographic works and photographic works), derivative works (including translations, adaptations and arrangements of music) and collections of works such as anthologies and encyclopaedias.

10.95 The text of art 10(1) makes it clear that a quotation must meet three requirements to be permitted under the provision.[119] These are, first, that the work in question must have been ‘lawfully made available to the public’; secondly, that the making of the quotation must be ‘compatible with fair practice’; and, thirdly, that the extent of the quotation must ‘not exceed that justified by the purpose’.

A new quotation exception

10.96 In the Issues Paper, the ALRC asked whether there should be a fair dealing exception for the purpose of quotation.[120]

10.97 An example of when such an exception might be relevant arose in litigation over whether EMI’s recordings in the Kookaburra case had infringed copyright.[121] On appeal, Emmett J expressed his ‘disquiet’ in finding copyright infringement in the circumstances of the case.[122] He stated:

The better view of the taking of the melody from Kookaburra is not that the melody was taken ... in order to save effort on the part of the composer of Down Under, by appropriating the results of Ms Sinclair’s efforts. Rather, the quotation or reproduction of the melody of Kookaburra appears by way of tribute to the iconicity of Kookaburra, and as one of a number of references made in Down Under to Australian icons.[123]

10.98 The idea of a quotation exception received some support from stakeholders,[124] including because existing exceptions are not broad enough;[125] and as an alternative to a transformative use exception.[126]

10.99 Several stakeholders referred to the Kookaburra case as illustrating a gap in the law.[127] For example, Robert Xavier stated that reasonable sampling should be covered by an exception for quotation (and should not need a transformative use exception).

A quotation exception would be a very good thing. It is already the case that reproductions that are not ‘substantial’ do not infringe copyright, but ‘substantial’ has been interpreted so as to cover reproductions of almost any expressive elements of a work. No legitimate purpose or interest is served by preventing fair quotation, and legal action taken on the basis of quotations is often blatant rent-seeking.[128]

10.100 Robin Wright stated that the issue of ‘using quotations of third-party copyright material for academic purposes is of significant concern in universities’, in particular because university staff often have considerable difficulty determining if the amount they wish to use would be considered less than a substantial part of a work.

10.101 Wright suggested that any exception aimed at allowing quotation ‘should permit academic users and their publishers to include a deemed amount of a third-party copyright item as a quotation without seeking permission, but still be subject to an evaluation of fairness factors to allow for some flexibility’.[129] The CSIRO held similar concerns about the need for a ‘specific fair quotation right’ applying to existing published material cited in reports or literature studies;[130] and Professor Kathy Bowrey noted that a quotation exception could ‘empower some authors to resist unreasonable publisher requests to clear quotations’.[131]

10.102 The International Association of Scientific, Technical and Medical Publishers stated that it would support an exception for ‘academic use’ that was clearly defined, compliant with art 10(1) of the Berne Convention and required proper attribution.[132] The ABC advised that quotation is common in some genres of radio programming such as live talk-back and history programming. Section 45 allows for the use of an extract of a literary or dramatic work of reasonable length in a broadcast, but this exception does not cover recordings of broadcasts or online transmission.[133]

10.103 The Australian Digital Alliance and Australian Libraries Copyright Committee considered that ‘any uses of copyright material that would be covered by a fair dealing exception for “quotation” would be more simply and effectively covered by a broad, flexible exception’.[134]

10.104 Those opposing a quotation exception[135] did so for a range of reasons, primarily on the basis that existing exceptions adequately cover quotation. It was also suggested that a broader quotation exception would interfere with existing licensing practices[136] and present significant drafting problems and uncertainty,[137] including in relation to any conflict with the three-step test.[138] Screenrights, for example, stated:

Works may be quoted under the fair dealing provisions, provided the quote falls within one of the specified purposes. To allow for quotation outside these purposes, for example to sample one work in another or to use a work for the purpose of transforming it, can be, and is, adequately dealt with under a commercial licence obtained from the rightsholder. Filmmakers and publishers are used to obtaining permission to quote from other works and have well-established procedures to do this.[139]

10.105 The Australian Copyright Council observed that creating a ‘new fair dealing exception for quotation to facilitate mashups and other user-generated content would need to be justified on significant public policy grounds’ and that an exception ‘simply to legitimate common consumer behaviour would sit oddly as a fair dealing’.[140] The Arts Law Centre submitted that the framing of a fair dealing exception ‘simply for the purpose of quotation and for no other public purpose’ would be problematic—particularly as under the Berne Convention quotations need not be text-based.[141]

10.106 The Music Council of Australia acknowledged that the existing exceptions will not always be ‘a complete answer to the multitude of uses and methods of using musical works and materials and that certain musical genres (such as jazz and hip hop) rely on the quotation of existing copyright material as part of their vernacular’. The Council considered, however, that there is already sufficient uncertainty in the application of the tests concerning a ‘substantial part’. It stated that ‘including a further similar flexible (and thereby inherently uncertain) concept into the fair dealing exception’ may raise more problems than it purports to solve.[142]

Framing a quotation exception

10.107 A number of models for a quotation exception have been suggested. For example, in 2011, the Copyright Council Expert Group discussed an exception permitting the quotation of copyright material in commercial works, before recommending the development of a non-commercial transformative use exception.[143]

10.108 Associate Professor Elizabeth Adeney has proposed draft clauses providing fair dealing exceptions for quotation.[144] Her model provides for separate exceptions in relation to: (i) reproductions and communications of works; and (ii) and performances of works. Both exceptions would provide that a use would not constitute copyright infringement if:

  • it is for the purpose of quotation;

  • the quotation constitutes a fair dealing with the quoted material; and

  • sufficient acknowledgement of the quoted material is made.

10.109 Both provisions would also provide a list of discretionary matters to consider in determining whether the use of a ‘quotation’ satisfies ‘fair dealing.’ These include:

  • whether the quotation has been used in good faith;

  • the extent of the quotation and whether or not this exceeds the purpose for which the quotation is used;

  • the degree to which the quotation interferes with the commercial interests of the copyright owner of the quoted work; and

  • whether the use of the quotation furthers the community interest in free speech and the freedom of artistic expression.[145]

10.110 Adeney acknowledges that any exception for quotation would have to address a number of complexities, including whether the provisions should apply only to published works; how ‘quotation’ is to be defined; and how an exception for quotation would interact with other fair dealing exceptions.[146] She states that specific exceptions for quotation:

would support or extend other fair dealing arguments in the areas of scholarship and debate and, like the recently implemented exception for parody and satire, it would have the capacity to soften the impact of copyright in the arts sphere. This capacity would be strengthened if a consideration of the freedom of art were to be mandated, going to the question of fair dealing in the quotation context. The defence would also bring Australian copyright law into closer alignment with both the European jurisdictions and the Berne Convention/TRIPS requirements.[147]

Fair use and quotation

10.111 In the ALRC’s view, there are strong arguments that Australian copyright law should provide more scope for the quotation of copyright material—particularly where there is little or no effect on the potential market for, or value of, the copyright material. The intention of such a reform would be to promote fair access to and wide dissemination of content (Principle 3), while continuing to acknowledge and respect authorship and creation; and to maintain incentives to the creation of works and other subject matter (Principles 1 and 2).[148]

10.112 The preferable means of reform is for quotation to be considered under the proposed fair use exception where a range of factors can be balanced in determining whether a particular use is permitted.

10.113 The concept of quotation is central to US fair use doctrine. The Copyright Act 1976 (US) provides that one of the factors determining fair use is ‘the amount and substantiality of the portion used in relation to the copyrighted work as a whole’.[149] Even before codification, fair use was considered to cover the quotation of excerpts in a review or criticism for purposes of illustration or comment, and the quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations.[150] The amount of the copyrighted work quoted is not always determinative of fair use, and will depend on the application of other fair use factors.[151] It has been held that there is both a quantitative and qualitative element to determining whether a ‘quotation’ is fair use.[152]

10.114 The ALRC proposes that ‘quotation’ be one of the illustrative purposes listed in the fair use provision. This will signal that a particular use that falls within the broader category of ‘quotation’ is more likely to be fair than a use which does not fall into this, or any other, illustrative purpose category. However, all the fairness factors must be considered in determining whether a particular use is fair. As discussed in Chapter 4, the fact that a particular use falls into, or partly falls into, one of the categories of illustrative purpose, does not necessarily mean the particular use is fair. In fact, it does not even create a presumption that the use is fair. A consideration of all the fairness factors remains necessary.

10.115 Providing quotation as an illustrative purpose may be criticised on the basis that referring to quotation without reference to a particular purpose (such as criticism or review) may lack meaning. That is, without further context it would refer simply to the act of using a part, rather than the whole, of a work. The ALRC is interested in further comment on whether quotation should be framed as an illustrative purpose.

10.116 In the event that a fair use exception is not enacted, the ALRC proposes an alternative, namely, fair dealing for the purpose of quotation. This fair dealing exception would require consideration of whether the use is fair, having regard to the same fairness factors that would be considered under the fair use exception. Applying the two exceptions to instances of quotation should, therefore, produce the same result.

Proposal 10–2 The fair use exception should be applied when determining whether quotation infringes copyright. ‘Quotation’ should be an illustrative purpose in the fair use exception.

Proposal 10–3 If fair use is not enacted, the Copyright Act should provide for a new fair dealing exception for quotation. This should also require the fairness factors to be considered.

[107] S Ricketson and J Ginsburg, International Copyright and Neighbouring Rights: The Berne Convention and Beyond (2nd ed, 2006) Vol I, 788, commenting on the quotation right provided for in the Berne Convention.

[108]Copyright Act 1968 (Cth) s 14(1)(a).

[109] See Thomson Reuters, The Law of Intellectual Property: Copyright, Designs and Confidential Information, [9.20].

[110] Ibid, [9.20], citing, eg, Blackie & Sons Ltd v Lothian Book Publishing Co Pty Ltd (1921) 29 CLR 396.

[111]Copyright Act 1968 (Cth) ss 41, 41A, 42.

[112] Ibid s 40(2).

[113] Copyright Council Expert Group, Directions in Copyright Reform in Australia (2011), 2.

[114] E Adeney, ‘Appropriation in the Name of Art: Is a Quotation Exception the Answer?’ (2013) 23(3) Australian Intellectual Property Journal 142.

[115]Berne Convention for the Protection of Literary and Artistic Works (Paris Act), opened for signature 24 July 1971, [1978] ATS 5 (entered into force on 15 December 1972).

[116] S Ricketson and J Ginsburg, International Copyright and Neighbouring Rights: The Berne Convention and Beyond (2nd ed, 2006) Vol I, 783.

[117] ARIA, Submission 241. ARIA stated that a plain reading of the English text makes it clear that ‘permissible’ can only mean there is ‘a possibility to permit’ quotation, rather than an obligation, and that this construction is reinforced by the preceding provisions that state parties cannot provide beneficiaries under the Berne Convention a level of protection that is lower than that prescribed in it, but do not prohibit the granting of a higher level of protection.

[118] Ricketson has noted that due to the mandatory character of the exception, ‘article 10(1) is the one Berne Convention exception that comes closest to embodying a “user right” to make quotations’: S Ricketson and J Ginsburg, International Copyright and Neighbouring Rights: The Berne Convention and Beyond (2nd ed, 2006) Vol I, 788–789.

[119] Ibid, 785–786.

[120] Australian Law Reform Commission, Copyright and the Digital Economy, IP 42 (2012), Question 47.

[121]EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd (2011) 191 FCR 444.

[122] Ibid, [98].

[123] Ibid, [99].

[124] For example, CSIRO, Submission 242; Pirate Party Australia, Submission 223; Australian Broadcasting Corporation, Submission 210; R Wright, Submission 167; R Xavier, Submission 146; M Rimmer, Submission 143; Civil Liberties Australia, Submission 139; Spinifex Press, Submission 125; K Bowrey, Submission 94.

[125] For example, Australian Broadcasting Corporation, Submission 210; R Wright, Submission 167; R Xavier, Submission 146; K Bowrey, Submission 94.

[126] K Bowrey, Submission 94.

[127] For example, R Wright, Submission 167; R Xavier, Submission 146; M Rimmer, Submission 143.

[128] R Xavier, Submission 146.

[129] R Wright, Submission 167.

[130] CSIRO, Submission 242.

[131] K Bowrey, Submission 94.

[132] IASTMP, Submission 200.

[133] Australian Broadcasting Corporation, Submission 210. Section 45 and other copyright exceptions applying to broadcasting are discussed in Ch 15.

[134] ADA and ALCC, Submission 213.

[135] For example, Music Council of Australia, Submission 269; Copyright Agency/Viscopy, Submission 249; APRA/AMCOS, Submission 247; Combined Newspapers and Magazines Copyright Committee, Submission 238; Australian Directors Guild, Submission 226; News Limited, Submission 224; Australian Copyright Council, Submission 219; Screenrights, Submission 215; Australian Film/TV Bodies, Submission 205; Arts Law Centre of Australia, Submission 171; Australian Society of Authors, Submission 169.

[136] APRA/AMCOS, Submission 247; Screenrights, Submission 215; Australian Society of Authors, Submission 169.

[137] Music Council of Australia, Submission 269; Combined Newspapers and Magazines Copyright Committee, Submission 238; Copyright Council, Submission 219; Arts Law Centre of Australia, Submission 171.

[138] Australian Copyright Council, Submission 219; Australian Film/TV Bodies, Submission 205.

[139] Screenrights, Submission 215.

[140] Australian Copyright Council, Submission 219.

[141] Arts Law Centre of Australia, Submission 171. ARIA was strongly of the view the concept of quotation has no application to neighbouring rights and that there should be no exception for the ‘quotation’ of sound recordings, broadcasts or performances: ARIA, Submission 241.

[142] Music Council of Australia, Submission 269.

[143] Copyright Council Expert Group, Directions in Copyright Reform in Australia (2011), 2.

[144] E Adeney, ‘Appropriation in the Name of Art: Is a Quotation Exception the Answer?’ (2013) 23(3) Australian Intellectual Property Journal 142, 156.

[145] Ibid, 156.

[146] Ibid, 158.

[147] Ibid, 159.

[148] See Ch 2.

[149]Copyright Act 1976 (US) s 107(3).

[150] United States House of Representatives, Committee on the Judiciary, Copyright Law Revision (House Report No. 94-1476) (1976), 5678–5679.

[151]Campbell v Acuff-Rose Music Inc (1994) 510 US 569, 586–587.

[152]Harper & Row Publishers, Inc. v. Nation Enterprises (1985) 471 US 539.