What is “fair use” and when is it fair?

“Fair use” is a term that you have probably heard before. News and the media – especially tabloids – use it to defend their potentially scandalous articles. Photographers, musicians and artists might use it to justify using copyrighted material in their work. It’s also often used to enable comedy shows, comedians and satirists to closely parody or ridicule established franchises and movies.

Fair use is an important concept in copyright protection, as it dictates when you can and can’t use other people’s work legally.

It’s important to note that Australia does not use the popular “fair use” terminology like the US, but rather “fair dealing”, which shares some similarities, but is not the same as the US model.

But what exactly is fair dealing in Australia, and when it is “fair”?

Fair dealing in Australia

Generally speaking, using a “substantial part” of someone else’s material without permission is considered copyright infringement.

The primary exception to this is “fair dealing”. Under the Copyright Act, Australian law allows fair dealing exceptions for the set purposes of:

• Research and study
• Review and criticism
• News reporting
• Legal advice
• Parody and satire

The law is also relatively narrow in what materials fair dealing can apply to, covering only literary, dramatic, musical or artistic works (and adaptions of) and audio-visual material such as sound recordings, films, or television broadcasts.

Finally, in addition to meeting the above requirements, any use of copyrighted material must be done for a genuine purpose, and be “fair”. However, whether a particular use is ‘fair’ is not strictly defined by law, and will depend on the circumstances of the case.

What is “fair”?

While there is not a hard and fast rule on ‘fair’, there are some sections in the Copyright Act which provide some limited details. There are also useful guidelines published by non-profit organisations such as the Australian Copyright Council.

Criticism and review and reporting

Both criticism and review and news reporting must provide ‘sufficient acknowledgement’ of the author and the original work to be considered fair.

Generally, to count as criticism and review, your work must make a judgement about the original material and it must be genuine. It doesn’t, however, need to be balanced, serious or authoritative.

News reporting is a little more difficult, but generally, commentary about recent events or important long-term events fall under “reporting the news”. The report must also be genuinely “newsworthy”, but this is determined on a case-by-case basis.

Research and study

You are able to use someone’s copyright without permission for the purpose of research or study, provided the use is fair. The research or study does not need to be part of a formal course; personal research will also count as ‘research and study’. The amount of original work you can use will vary depending on the form (e.g. music, photography) and you should consult a professional if you’re unsure.

Parody and satire

Satire does not have a legal definition, but the Australian Copyright Council advises that parody is commonly understood as an “imitation of a work which is likely to include parts of the original”. In order to be a parody or satire, it must make some commentary on the imitated work or on its creator.

It’s important to note that humour alone is not enough – there needs to be a form of commentary (explicit or implied) about the copyright material being used, or of the characteristics or actions in question. Parody or satire that involves derogatory statements of someone else’s copyright material may be fair dealing but may still be an infringement of the moral right of integrity.

Fair use and the digital world

Australian law has not yet explicitly addressed copyright in regards to changes in digital technology. The Australian Legal Reform Commission has long been recommending the introduction of a fair use exception to Australian copyright law. Some parties are pushing for a modern reform that moves closer to the US Fair Use model, while others are clearly opposed to it.

As you might guess, fair dealing law in Australia is relatively narrow. It only applies to a limited number of copyright materials and uses. It would not be difficult to find yourself using something outside of these limited rules, which does not automatically make it ‘unfair’, but means it will require careful consideration.

If you’re dealing with someone else’s copyright material and are not sure whether it would fall under fair use, our IP Consultants can work with you to review and provide guidance on how best to ensure your use is fair. Contact us today.

‍