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.
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:
We’ll explain the first four, as they’re most useful to the average Australian.
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.
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.
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.
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.
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.
Fair dealing only applies when the use is “fair”.
When assessing fairness in Australia, there are a number of relevant considerations, including:
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:
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.
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.
This article is by Associate Professor Nicolas Suzor and Katherine Gough, a musician and law student from Queensland University of Technology and was originally published on The Conversation. It is republished here under a Creative Commons Attribution-No Derivative licence. See the original article.