Fair Dealing and Fair Use: How Australian Copyright Differs from the USA
Chances are you've heard of 'fair use' when it comes to copyright. In Australia, we don't use fair use. Instead, we have a principle called fair dealing. Is there a difference?
You’ve likely heard of cases of famous artists or songwriters accused of copying. Somebody may be reusing melodies or drum rhythms from an old song. These days, a lot of that controversy exists on YouTube and ‘copy strikes’. Around these media stories, people will often discuss ‘fair use‘. Fair use is a principle of determining copyright infringement. The United States mainly uses fair use. Generally, fair use is quite broad and allows people to use other materials in their own work, so long as it’s considered fair. It’s commonly misunderstood that Australia has fair use. In fact, Australia does not use the principle of fair use. Instead, we use a principle called fair dealing.
Is there a difference, though? Broadly, yes there is a difference. Both fair dealing and fair use allow you to use other copyrighted work in your own without breaking the law. Fair use allows for a lot more flexibility when it comes to using other works. Fair dealing, on the other hand, is more restrictive. Let’s have a look at them in a little more detail.
Fair Dealing v Fair Use: Australian Perspective
The Copyright Act 1968 (Cth) contains Australia’s fair dealing principles. The Act outlines instances where you can use somebody else’s material in a way that doesn’t infringe copyright. What’s important about fair dealing in Australia is that the listed uses in legislation are the only ways you can use copyrighted works legally. In this way, it is quite restrictive. There is no general exception for using copyrighted works just because you’re not making any profit. To be considered a use that comes under ‘fair dealing’, it must be in one of the following categories:
- Research or study
- Criticism or review
- Parody or satire
- Reporting the news
- Reproduction for professional advice or judicial proceedings
- Enabling a person with a disability to access material
However, even these exceptions have their limits. For example, literary, dramatic or musical works can be used for research and study purposes. However, only 10% of the number of pages can be used. If the work is divided into chapters, however, only one chapter can be used.
When using copyrighted work for criticism or review, you must acknowledge the original author and title of the work. The dealing must also be fair, as well.
When is Dealing ‘Fair’ in Australia?
In all of the exceptions listed above, the use of work must still be fair. Even if you are providing genuine criticism about the last season of Game of Thrones, it wouldn’t be fair to play the entire episode along with your critique. If it reaches court, judges will consider a few things when looking at whether or not your dealing has been fair.
For example, they consider how much of the original work you’ve taken. In the Game of Thrones example, it’s obvious that it’s unfair to use an entire episode. It would be fair, however, to use snippets that complement your criticism.
How much of the original work you use goes hand in hand with the effect of your copying on the market. If you upload an entire episode to YouTube, you’re taking away possible revenue from the original work. Even if your criticisms are lengthy, it is still unfair to take away revenue from content creators.
Fair Dealing v Fair Use: The USA
Section 107 of the Copyright Act 1976 (US) describes how fair use allows the use of copyrighted works without infringement. Instead of providing limited cases where you are allowed to use certain works, the US law provides ‘fair use factors’. These factors allow a broad and beneficial range of ways that you can use other works without breaking the law. The fairness factors include:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
- the nature of the copyrighted work
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole
- the effect of the use upon the potential market for or value of the copyrighted work’
The US law does provide some examples of uses that are fair, such as those that are in the process of teaching, comment, news, and research. Even though these examples are provided, they are not an exhaustive list. This means that there are plenty more instances where you can fairly use materials without infringing copyright and these examples are just indicative.
For the most part, American courts determining whether the use of work is fair, look to whether it is ‘transformative’. This just means that the copying of the work adds something meaningful to the original or adds new expression. For example, posting a picture you took of the Mona Lisa on your Facebook is not transformative. Painting your own collage of Leonardo da Vinci’s works would be transformative, however.
Fair use is a concept used in the United States and is far more flexible than the Australian fair dealing principle. Images and news articles are all protected by copyright law so if you use these for your business, make sure that you have a license from the author. Alternatively, you might already be covered under one of the fair dealing exceptions listed above. Things can get blurry when using other people’s works fairly. If anything is still confusing, fear not. Get in touch with a copyright lawyer if you’re still unsure about your rights.
Michael is a legal intern at Lawpath working with the content team. With an interest in contracts, intellectual property, and constitutional law, Michael is currently completing a Bachelor of Laws with a Bachelor of Commerce at Macquarie University.