Explainer: What is 'fair dealing' and when can you copy without permission?

Copyright law sometimes allows you to use someone else’s work - as long as it’s fair. In Australia this is called “fair dealing”, and it’s different to the law in the US, which is called “fair use”.

These exceptions are safety valves in copyright law – they allow lots of beneficial uses that society has agreed copyright owners should not be able to charge for, or worse, prevent.

There’s a serious ongoing debate about whether Australia should update its copyright laws and introduce fair use. The current law is not easy to understand – our research shows that Australian creators are often confused about their rights – and many think we already have fair use.

Fair dealing: What can you do in Australia?

The key difference between “fair use” and “fair dealing” is that Australia’s “fair dealing” laws set out defined categories of acceptable uses. As we will see, “fair use” in the US is much more flexible.

Australian copyright law sets out five situations where use of copyrighted material without permission may be allowed:

• research or study
• criticism or review
• parody or satire
• reporting the news
• provision of legal advice.

We’ll explain the first four, as they’re most useful to the average Australian.

Research or study

You do not need permission to copy a reasonable portion of copyrighted material if you are studying it or using it for research. You do not have to be enrolled in school or a university course to rely on the research or study exception.

For example:

• you can make a copy of a chapter of a book to study it
• you can print or take screenshots of content you find on the web for your research
• you can include quotes or extracts of other work when you publish your research.

The main thing to watch out for is how much you copy. It’s fair to photocopy a book chapter but not the whole book.

Criticism or review

It is lawful to use a work without permission in order to critique or review it.

Criticism or review involves making an analysis or judgement of the material or its underlying ideas. It may be expressed in an entertaining way, or with strong opinion, and does not need to be a balanced expression to be fair.

For example, a film critic does not need permission to play a short clip from a film they are reviewing. They may also use film clips from other movies to compare or contrast.

It’s also legal to quote an excerpt of a book or song lyrics, or to reference a photograph in another publication as part of a review or critique of the work.

You need to be really critiquing your source material. So, for example, a review video that is really just the highlights of a film or show probably won’t be fair.

This is something that tripped up Channel 10 in its clip show, The Panel. When the panellists discussed and critiqued the clips they showed, it was generally fair dealing. But when they just showed clips that were funny, a court found them liable for copyright infringement.

Reporting the news

You don’t need permission to use existing copyrighted material while reporting on current or historic events. The law is designed to ensure that people can’t use copyright to stifle the flow of information on matters of public interest.

The key issue to check here is whether a work has been used in a way that is necessary to report the news. If the material is just used incidentally, to illustrate a story or provide entertainment, it won’t count as fair dealing.

Parody or satire

It is legal to use another person’s copyrighted material without their permission to make fun of them, or to make fun of another person or issue.

Making something funny is not sufficient to rely on this exception. The use must be part of some commentary (express or implied) on the material or some broader aspect of society.

When is a use ‘fair’?

Fair dealing only applies when the use is “fair”.

When assessing fairness in Australia, there are a number of relevant considerations, including:

• how important copying is to your work (“nature and purpose of the use”)
• the type of work being copied (less original works may not be protected as strongly as more creative works)
• whether it is easily possible to get a licence within a reasonable time at an ordinary commercial price
• the effect of your copying on the potential market for the original
• the amount taken from the original work
• whether attribution has been given to the original author.

Generally, a use will be fair if you are copying for a valid reason, you don’t copy more than you need, you give attribution where possible, and your work is not directly competing in the market against the original.

Things to remember:

• Is copying necessary? Copying has to be necessary for one of the purposes above. This means that it might be fair to copy part of a song to review it, but it won’t be fair if you’re just using the song as background music.
• Copy no more than you need. Sometimes you need to copy the entirety of an existing work – if you’re critiquing a photograph, for example. Usually, though, you should only copy the parts that are necessary. You can’t get away with showing a whole TV episode in order to critique one scene.
• It’s usually not fair if you’re competing with the original. This is often the most important factor. When you copy existing material for your own study, to report on the news, or to create a parody, you usually won’t be undercutting the market for the original. But if you’re just repackaging the original material in a way that might substitute for it – a consumer might be satisfied with your work instead of the original – then your use probably won’t be fair.

How is ‘fair use’ different – what can’t you do with fair dealing?

In the United States, the law is more flexible, because it can adapt to allow fair use for purposes that lawmakers hadn’t thought of in advance.

Some of the things that are legal without getting permission in the US but not in Australia include:

Adapting to new technologies: Fair use is flexible enough to adapt to change, but fair dealing is not. For example, in the US, fair use made it legal to use a VCR to record television at home in 1984. In Australia, this wasn’t legal until parliament created a specific exception in 2006 – just about the time VCRs became obsolete.

Artistic use: In Australia, it’s legal to create a parody or a critique, but not to use existing works for purely artistic purposes. For example, Australian law makes it largely unlawful for a collage artist to reuse existing copyright material to create something new.

Uses that document our experiences: Media forms a big part of our lives, and when we share our daily experiences, we will often include copyright material in some way. Without fair use, even capturing a poster on a wall behind you when you take a selfie could infringe copyright.

In a famous example, Stephanie Lenz originally had an adorable 29-second clip of her baby dancing to a Prince song removed from YouTube, due to her use of the song. She was able to get it put back up under US fair use law – but an Australian wouldn’t have that right.

Technical and non-consumptive uses: The internet we love today is built on fair use. When search engines crawl the web, making a copy of every page they can in order to help us find relevant information, they’re relying on fair use.

Under Australian law, even forwarding an email without permission could be an infringement of copyright.

The copyright reform debate

Two recent government reports, from the Australian Law Reform Commission and the Productivity Commission, have recommended that Australia simplify its copyright law by introducing fair use.

Many of us copyright academics have written here extensively in support of fair use over the past few years, but there are still many myths about what the law would do.

It’s been suggested that introducing fair use here would provoke a “free for all” use of copyrighted work, but that hasn’t happened in the US. In fact, some of the same major studios that oppose fair use in Australia are at pains to point out that they support fair use in the US because it is vital to commercial production that happens there.

The Motion Picture Association of America, for example, says that “Our members rely on the fair use doctrine every day when producing their movies and television shows”.

To put it simply: we don’t think that fair use will harm creators.

The “fair” in fair use means that it’s not about ripping off creators – it mainly allows uses that are not harmful. But we do think that fair use would provide an important benefit for ordinary Australians – both creators and users.

Katherine Gough, a musician and law student at Queensland University of Technology, co-authored this article.