Arguably the most important exceptions in the Copyright Act are the fair dealing exceptions. Fair dealing allows people to deal with copyright material for specific purposes where it is fair to do so, without the need to get permission from copyright owners. Like all copyright exceptions, fair dealing is intended to balance a copyright owner’s right to protect their works (so as to provide incentives to create), with the public interest in permitting others to use those works in certain cases.
Purpose of the dealing
A “fair dealing” with a work does not infringe copyright if it is for one of the following purposes:
- • research or private study;
- • criticism or review; or
- • news reporting.
The terms “research” and “private study” can be understood by their ordinary meaning. It is generally accepted that research may include research for commercial or private purposes. However, only an individual doing the copying can rely on the fair dealing defence. Fair dealing does not cover use for someone else’s research or study, for example, a teacher copying for the research purposes of students. Only one copy can be made of material at any one time, so copying for group research or study is excluded. Separate exceptions and licensing schemes are available to facilitate copying and use in the educational context.
Fair dealing for criticism or review purposes allows a person to copy certain copyright material when they are critiquing or reviewing that material, for example when writing a book or film review. Some courts have also accepted that protection can extend to criticism of the ideas to be found in a work and its social and moral implications. A fair dealing for criticism or review must be accompanied by a “sufficient acknowledgement”. This generally means that the author (not the copyright owner) and the title of the work are acknowledged.
A fair dealing with a work for the purpose of reporting current events requires “sufficient acknowledgement” unless the reporting is by means of a sound recording, film or communication work. The news reporting exception does not apply to photographs, so permission is required to reproduce or communicate photographs for this purpose.
In addition to considering whether a dealing fits within a specific purpose, a court must consider what is “fair” depending on the facts of a particular case. There are several factors listed in the Copyright Act that must be taken into account in determining whether copying is “fair” (although it is likely a court would also refer to these factors for other dealings). The fairness factors are:
- the purpose of the copying (for example, copying for commercial purposes is less fair than copying for personal use);
- the nature of the work copied (the degree of skill, judgement or labour that went into creating the work may be relevant);
- whether the work could have been obtained within a reasonable time at an ordinary commercial price (it may be fair to copy all or part of a work that is not available commercially, but unfair to copy where you can buy it);
- the effect of the copying on the potential market for or value of the work (for example, where a work is available for sale or licence); and
- the amount and substantiality of the part copied (for example, it is less fair to copy a large or important part of a work than to copy a small or unimportant part. It is less fair to copy more than is necessary to make your point).
From a practical perspective, uses that compete with the copyright owner’s legitimate market, for example, are unlikely to be classified as fair dealing.