Many people are aware of the legal concept of fair use. It's a provision that's designed to allow the use of copyright protected content in certain situations that are considered fair.
What people may not know, however, is that fair use is not a part of Australian law. Instead, there is a similar concept known as fair dealing. Yet this isn't just a terminological distinction – the concepts are distinct and have different implications for people seeking to use copyrighted material in a fair way.
What is fair use?
Fair use is a defence against alleged copyright infringement that argues the use of the copyrighted material in a given instance is fair because it was transformative. That is to say, the person using said material had turned it into something else – a critique, a parody, a commentary, or some other form that has resulted in something new being made.
The point of fair use law is to balance the interests of the public with that of copyright holders. Oftentimes material that's copyrighted is of cultural significance. Were the law to be so heavily slanted towards the copyright holders, the public would not be as easily able to discuss, satirise or criticise prominent works – something that would undoubtedly be a detriment to culture as a whole.
Fair use law is deliberately open ended. Each case is assessed on its own merits, with the judges seeking to answer the question "was the use of copyrighted material in this case fair?" That can make it a little trickier for people using said materials, because whether or not they'll be protected by the law isn't 100 per cent clear.
What is fair dealing?
While the intent of Australia's fair dealing provision is the same as others' fair use ones – to allow for copyrighted material to be used in fair situations – the practicalities of when the law protects people using copyrighted material is much stricter. While fair use laws don't specify what categories of use copyrighted material can be used in, Australia's fair dealing laws do.
What makes something a 'fair' use depends on a number of factors too, including how important the use of the material was to your work, the impact your work may have on the market for the original material and the amount used from the original material.
What are the requirements for fair dealing in Australia?
In order for use of copyrighted material to be considered an instance of fair dealing, it has to have been used in one of the six following ways:
Research or study
Permission isn't required for copying material if it's being used for research or study. There are, however, limits to how much of a given work you can copy. It's OK to photocopy a chapter from a book, for example, but not the entire thing.
Criticism or review
When you're criticising or reviewing material, it's considered fair dealing to use the material you're judging in your critique. The common example is using clips from television shows or movies when producing a video reviewing it. The review need not be balanced and it can be humorous or strongly expressed – all that's required is that a judgement is being made of the material and the intention of the video is legitimately to critique.
Parody or satire
It's fine to use copyrighted material if it's in the service of parody or satire. Those terms, however, have not been defined in the Copyright Act. Simply making fun of something sometimes isn't enough – it needs to be in service of some greater point or have some commentary on the original material to be considered either of those things.
Reporting news
Copyrighted material can be used when reporting the news. The law is specifically designed to make sure information that's in the public interest can be reported on regardless of its status as protected intellectual property. However, if the use of the material is gratuitous, then a fair dealing defence may not stand up to scrutiny.
Provision of professional advice
Copyrighted material can be used by a lawyer, patent attorney or trade marks attorney when giving out professional advice. However, as with reporting news, the use of the material has to be legitimately for the purpose of giving advice, and not just incidentally.
Fair dealing for access by persons with a disability
A recent amendment to the copyright law has added a provision for people with disabilities being able to access copyrighted material in their required format. Certain organisations that assist people with disabilities are able to make and provide copies so long as the material isn't available on the open market at a reasonable price.
What makes the use of something fair?
For expert legal advice on all things intellectual property, contact the team at Alder IP today.