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ausip:copyrightdefences [2019/03/10 09:08]
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ausip:copyrightdefences [2019/09/11 15:05] (current)
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 # Copyright Limitations and Exceptions ​ # Copyright Limitations and Exceptions ​
  
-The exclusive rights of copyright holders, as outlined in chapter six are extensive and wide reaching. As a result of these rights, there is a need for copyright law to ensure that a balance of interests is reached between private interests and public interests. This balance seeks to ensure creators are encouraged and provided incentives to create innovative materials, on the one hand, and the interests of users of copyright materials, on the other hand.+Copyright law does not permit unauthorized use of copyrighted works. However, owners of copyright do not get total control over how their works can be reused. There are exceptions to copyright infringment that are designed to promote education, critique, and creativity. Under Australian law, the use of copyrighted works without the permission of the owner is permitted if the use falls under the “fair dealing” exceptions. 
 + 
 +To fall within a fair dealing exception, the use must be for one of the stated purposes and it must be fair. The acceptable purposes are: 
 + 
 +* Research or study 
 +* Criticism or review 
 +* Parody or satire 
 +* Reporting news 
 +* Enabling access to material by a person with disability; or 
 +* Professional advice by a lawyer, patent or trademarks attorney. 
 + 
 + 
 +## Limitations,​ exceptions, or users' rights? 
 + 
 +The exclusive rights of copyright holders are extensive and wide reaching. As a result of these rights, there is a need for copyright law to ensure that a balance of interests is reached between private interests and public interests. This balance seeks to ensure creators are encouraged and provided incentives to create innovative materials, on the one hand, and the interests of users of copyright materials, on the other hand.
  
 The Copyright Law Reform Committee (CLRC), Copyright and Contract (2002) states: ​ The Copyright Law Reform Committee (CLRC), Copyright and Contract (2002) states: ​
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 Each of these will be discussed below. ​ Each of these will be discussed below. ​
- 
  
 ## Fair Dealing ## Fair Dealing
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 +## What is '​Fair'?​
 +
 +‘Fairness’ will be depend on the circumstances and context of the use - there is no set rule for what makes a use fair. However, you should consider your use holistically,​ and particularly consider:
 +
 +* How much of the existing work are you copying?
 +* How is your use likely to impact the market for the original work? (Are consumers likely to purchase your product instead of the original?)
 +* Do you have an option to obtain permission to use the work within a reasonable time and cost?
 +
 +These questions will not determine fairness, but they can help you reach a decision by weighing up some relevant considerations.
 +
 +A use will not be unfair simply because you might have been able to get a licence (permission),​ but a court may consider licensing options when considering all of the circumstances. For example, a copyright owner is unlikely to give permission for a parody or satire that makes fun of them or their work, which is why we have a fair dealing exception for this purpose.
 +
 +### How much copying is “too much” for fair dealing?
 +
 +There is no hard and fast rule for how much copying or use is too much under the fair dealing exceptions.
 +
 +How much of the original work you use may be relevant to fairness, but this depends of the context and the type of work you are using. It is far more reasonable to use the whole of an artistic work, like a picture, for example, than it is to use the whole of a literary work, like a book.
 +
 +<WRAP center round info 90%>
 +
 +**Have you heard of the 10% rule? This ‘rule’ is mostly incorrect.**
 +
 +The only fair dealing exception with clear guidelines is the fair dealing for research or study. This exception states that if a work is available in hard copy form (e.g. a book), then up to 10% of the number of pages will be fair, and if the work is published electronically (e.g. an online journal article), then up to 10% of the number of words will be fair. In either case, if the work is divided into chapters, then generally it will be fair to copy one chapter of the work for research or study. But the 10% assessment only applies for research or study, not fair dealing generally.
 +
 +It is also important to know that the fair dealing for research or study operates for students, but not teachers. You can copy work for your own study, but not for someone else’s. You generally cannot copy works for the purpose of distributing to other people in order to teach them or for their research and study.
 +
 +</​WRAP>​
 +
 +### Does “fair use” and “fair dealing” mean the same thing?
 +
 +No, they are **NOT** the same. “Fair use” is a concept under the laws of the United States whereas the Australian law only recognises “fair dealing”. These are different concepts, with different scope and application.
 +
 +As both provide exceptions to copyright use, it's easy to confuse the two. You may come across interchangeable use of “fair dealing” and “fair use” in some places. However, “fair use” provisions are broader in scope and DO NOT apply in Australia.
 +
 +The difference is this: in the US, the courts only need to consider whether the use is fair. By contrast, in Australia, the courts need to consider whether the use is fair AND ensure that the use falls within one of the specified fair dealing purposes.
 +
 +## What purposes are permitted?
  
 ### Research or Study ### Research or Study
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 The leading case of //De Garis v Neville Jeffress Pidler Pty Ltd// considered the meaning of the terms "​research or study"​. The leading case of //De Garis v Neville Jeffress Pidler Pty Ltd// considered the meaning of the terms "​research or study"​.
- +<WRAP case> 
-__De Garis v Neville Jeffress Pidler Pty Ltd__((18 IPR 292))+__//​De ​Garis v Neville Jeffress Pidler Pty Ltd//__((18 IPR 292))
  
 In the case of [De Garis v Neville Jeffress Pidler Pty Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCA/​1990/​218.html) the court found that the respondent, a press clipping and media research bureau, who supplied photocopies of published material in return for a fee was not "​research"​ or “study” in the terms of s 40. In the case of [De Garis v Neville Jeffress Pidler Pty Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCA/​1990/​218.html) the court found that the respondent, a press clipping and media research bureau, who supplied photocopies of published material in return for a fee was not "​research"​ or “study” in the terms of s 40.
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 Held, the purpose of the respondent’s press clipping service was not to conduct research, even though research may have been the purpose of its customers. Held, the purpose of the respondent’s press clipping service was not to conduct research, even though research may have been the purpose of its customers.
 +</​WRAP>​
  
 Several non-exclusive factors may be taken into account in determining whether a dealing for research or study purposes is fair.  ​ Several non-exclusive factors may be taken into account in determining whether a dealing for research or study purposes is fair.  ​
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 * "​criticism"​ includes all kinds of criticism – it is not restricted to literary criticism - “review” is cognate with the word “criticism”;​ one is the process, the other is the result of the critical application of the mental faculties. * "​criticism"​ includes all kinds of criticism – it is not restricted to literary criticism - “review” is cognate with the word “criticism”;​ one is the process, the other is the result of the critical application of the mental faculties.
  
-__TCN Channel Nine Pty Ltd v Network Ten Ltd [2001] FCA 108__+<WRAP case> 
 +__//​TCN ​Channel Nine Pty Ltd v Network Ten Ltd// (([2001] FCA 108))__
  
 In the case of [TCN Channel Nine Pty Ltd v Network Ten Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCA/​2001/​108.html) Justice Conti noted that: In the case of [TCN Channel Nine Pty Ltd v Network Ten Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCA/​2001/​108.html) Justice Conti noted that:
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 "​Criticism"​ and “review” are words of “wide and indefinite scope which should be interpreted liberally” and extend to “the thoughts underlying the expression of copyright works or subject matter”. "​Criticism"​ and “review” are words of “wide and indefinite scope which should be interpreted liberally” and extend to “the thoughts underlying the expression of copyright works or subject matter”.
 They involve the passing of judgment and may be strongly expressed but, provided they are genuine and not a pretence for some other purpose, need not be balanced. [66] They involve the passing of judgment and may be strongly expressed but, provided they are genuine and not a pretence for some other purpose, need not be balanced. [66]
- +</​WRAP>​ 
- +<WRAP case> 
-__TCN Channel Nine Pty Ltd v Network Ten Ltd (2002) 55 IPR 112__+__//​TCN ​Channel Nine Pty Ltd v Network Ten Ltd// (( (2002) 55 IPR 112))__
  
 In the Full Court'​s decision of [TCN Channel Nine Pty Ltd v Network Ten Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCAFC/​2002/​146.html) Justice Hely (Sundberg and Finkelstein JJ agreeing) at [115] said the test is: In the Full Court'​s decision of [TCN Channel Nine Pty Ltd v Network Ten Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCAFC/​2002/​146.html) Justice Hely (Sundberg and Finkelstein JJ agreeing) at [115] said the test is:
  
 "[I]s the program incorporating the infringing material a genuine piece of criticism or review, or is it something else, such as an attempt to dress up the infringement of another’s copyright in the guise of criticism, and so profit unfairly from another’s work? As Lord Denning said in Hubbard v Vosper [1972] 2 QB 84 at 93, ‘it is not fair dealing for a rival in the trade to take copyright material and use it for its own  benefit’"​. "[I]s the program incorporating the infringing material a genuine piece of criticism or review, or is it something else, such as an attempt to dress up the infringement of another’s copyright in the guise of criticism, and so profit unfairly from another’s work? As Lord Denning said in Hubbard v Vosper [1972] 2 QB 84 at 93, ‘it is not fair dealing for a rival in the trade to take copyright material and use it for its own  benefit’"​.
 +</​WRAP>​
  
 ### Reporting of the News ### Reporting of the News
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-**What is the likely scope of the parody and satire exception?**+#### What is the likely scope of the parody and satire exception?
  
 The US courts, in interpreting fair use, have traditionally made a distinction between parody and satire: Parody involves some degree of criticism on the subject-matter or author; whereas satire is more directed towards an unrelated target or society at large. The US courts, in interpreting fair use, have traditionally made a distinction between parody and satire: Parody involves some degree of criticism on the subject-matter or author; whereas satire is more directed towards an unrelated target or society at large.
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 * the effect of the use upon the potential market for or value of the copyrighted work. * the effect of the use upon the potential market for or value of the copyrighted work.
  
 +<WRAP case>
 +__//​Campbell v Acuff-Rose//​ ((510 US 569 (1994) ))__
  
-__Campbell v Acuff-Rose510 US 569 (1994)__+The Supreme Court held that 2 Live Crew’s Parody of Roy Orbison’s ‘Pretty Woman’ was a fair use. They used the familiar first line and opening melodybut changed all the rest of the lyrics ​(referring variously to ‘pretty woman’, ‘big hairy woman’, ‘bald headed woman’, ‘two-timing woman’) 
 +2 Live Crew asked for a licence but were refused. They continued with the parody anyway. Even though 2 Live Crew took the ‘heart’ of ‘Pretty Woman’, "that heart is what most readily conjures up the song for parody, and it is the heart at which parody takes aim".
  
-* Supreme Court held that 2 Live Crew’s Parody of Roy Orbison’s ‘Pretty Woman’ was a fair use. +The new version was a transformative use – markedly different from the original and not substitutable in the market. 
-* Used the familiar first line and opening melody, but changed all the rest of the lyrics (referring variously to ‘pretty woman’, ‘big hairy woman’, ‘bald headed woman’, ‘two-timing woman’) +</​WRAP>​
-* 2 Live Crew asked for a licence but were refused. They continued with the parody anyway. +
-* Even though 2 Live Crew took the ‘heart’ of ‘Pretty Woman’, "that heart is what most readily conjures up the song for parody, and it is the heart at which parody takes aim"​. +
-The new version was a transformative use – markedly different from the original and not substitutable in the market.+
  
-__Dr Seuss Enterprises v Penguin Books USA, Inc109 F.3d 1394 (9th Cir. 1997)__+<WRAP case> 
 +__//​Dr ​Seuss Enterprises v Penguin Books USA, Inc// ((109 F.3d 1394 (9th Cir. 1997) ))__
  
 * Used the style of a Dr Seuss book while retelling the facts of the OJ Simpson murder trial. * Used the style of a Dr Seuss book while retelling the facts of the OJ Simpson murder trial.
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 * It merely used Dr Seuss characters and style to tell the story of the murder. * It merely used Dr Seuss characters and style to tell the story of the murder.
  
-__Leibovitz ​v. Paramount Pictures Corp.137 F.3d 109 (2d Cir. N.Y. 1998)__+</​WRAP>​ 
 + 
 +<WRAP case> 
 +__//​Leibovitz ​v. Paramount Pictures Corp.//__ ((137 F.3d 109 (2d Cir. N.Y. 1998) ))
  
 * Paramount photoshopped Leslie Nielsen’s head onto a photo of a naked pregnant woman, mimicking the famous portrait of Demi Moore by Annie Leibovitz for Vanity Fair. * Paramount photoshopped Leslie Nielsen’s head onto a photo of a naked pregnant woman, mimicking the famous portrait of Demi Moore by Annie Leibovitz for Vanity Fair.
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 * Second Circuit found fair use: the studio’s use was a transformative parody because it imitated the original for comic effect or ridicule. * Second Circuit found fair use: the studio’s use was a transformative parody because it imitated the original for comic effect or ridicule.
  
-__Sun Trust v Houghton Mifflin268 F.3d 1257 (11th Cir. 2001__)+</​WRAP>​ 
 + 
 +<WRAP case> 
 +__//​Sun ​Trust v Houghton Mifflin//__ ((268 F.3d 1257 (11th Cir. 2001) ))
  
 * Alice Randall wrote ‘The Wind Done Gone’, reinterpreting Margaret Mitchell’s classic Gone with the Wind from the point of view of Cynara, a slave. * Alice Randall wrote ‘The Wind Done Gone’, reinterpreting Margaret Mitchell’s classic Gone with the Wind from the point of view of Cynara, a slave.
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 * Eleventh Circuit found that the use was probably a fair use. While it was a satire of society, it was also critical of the racist perspectives embedded in the original. * Eleventh Circuit found that the use was probably a fair use. While it was a satire of society, it was also critical of the racist perspectives embedded in the original.
  
-__Salinger ​v. Colting641 F. Supp. 2d 250 (S.D. N.Y. 2009)__+</​WRAP>​ 
 + 
 +<WRAP case> 
 +__//​Salinger ​v. Colting// ((641 F. Supp. 2d 250 (S.D. N.Y. 2009) ))__
  
 * An author created a book with the lead character modelled after Holden Caulfield from J.D. Salinger’s Catcher in the Rye. The new character was aged and placed in modern day New York. * An author created a book with the lead character modelled after Holden Caulfield from J.D. Salinger’s Catcher in the Rye. The new character was aged and placed in modern day New York.
  
 * The Court held that the use was not fair use, as ageing the character and placing him in new settings was not particularly transformative,​ particularly as the character’s personality was largely unchanged. * The Court held that the use was not fair use, as ageing the character and placing him in new settings was not particularly transformative,​ particularly as the character’s personality was largely unchanged.
 +
 +</​WRAP>​
  
 ## Specific, Royalty Free Exceptions ## Specific, Royalty Free Exceptions
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 **Video overview by Jennifer Singleton on[Time Shifting](https://​www.youtube.com/​watch?​v=PwzsIb9SF68).** **Video overview by Jennifer Singleton on[Time Shifting](https://​www.youtube.com/​watch?​v=PwzsIb9SF68).**
 +<WRAP case>
 +__//​National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd// (([2012] FCAFC 59))__
  
-__National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd [2012FCAFC 59__+**Video overview by Stuart Efstathis on [Optus TV Now](https://​www.youtube.com/​watch?​v=oQS8oKKwimA).**
  
 In the case of [National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCAFC/​2012/​59.html) Optus provided a "TV Now" subscription service whereby it copied and stored a television broadcast selected by a subscriber after subscriber clicked the “record” button on the subscriber’s Optus compatible device, to be played back at other times (“time-shifting”) with minimum delay of 2 minutes. In the case of [National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCAFC/​2012/​59.html) Optus provided a "TV Now" subscription service whereby it copied and stored a television broadcast selected by a subscriber after subscriber clicked the “record” button on the subscriber’s Optus compatible device, to be played back at other times (“time-shifting”) with minimum delay of 2 minutes.
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-**Video overview by Stuart Efstathis on[Optus TV Now](https://​www.youtube.com/​watch?​v=oQS8oKKwimA).**+</WRAP>
  
 ### Private Copying: Format Shifting ### Private Copying: Format Shifting
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 The statutory licence which took effect on 22 December 2017, provides greater flexibility over what can be negotiated and agreed with Copyright Agency and Screenrights in relation to copying and communications. This includes the copying and communication limits for works. The statutory licence which took effect on 22 December 2017, provides greater flexibility over what can be negotiated and agreed with Copyright Agency and Screenrights in relation to copying and communications. This includes the copying and communication limits for works.
  
-For more information on the statutory licence see[QUT'​s Copyright Guide](https://​www.library.qut.edu.au/​copyrightguide/​documents/​2017Amendment_Educational_statutory_licences_20171206.pdf). 
  
 The licenses assist educational institutions and institutions assisting persons with a print disability or an intellectual disability. The license allows the institutions to copy and communicate sound and television broadcasts and to reproduce and communicate works and published editions, on condition that equitable remuneration is paid to an approved collecting society. The licenses assist educational institutions and institutions assisting persons with a print disability or an intellectual disability. The license allows the institutions to copy and communicate sound and television broadcasts and to reproduce and communicate works and published editions, on condition that equitable remuneration is paid to an approved collecting society.
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