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Copyright Limitations and Exceptions

1. Limitations, exceptions, or users’ rights?
2. Fair Dealing
3. What is ‘Fair’?
   1. How much copying is “too much” for fair dealing?
   2. Does “fair use” and “fair dealing” mean the same thing?
4. What purposes are permitted?
   1. Research or Study
   2. Criticism or Review
   3. Reporting of the News
   4. Disability Access
   5. Professional Legal Advice
   6. Judicial Proceedings
   7. Parody or Satire
5. Specific, Royalty Free Exceptions
   1. Private Copying: Time Shifting
   2. Private Copying: Format Shifting
   3. Private Copying: Music
   4. Computer Software
   5. Other Specific, Royalty Free Exceptions
6. Statutory Licenses
7. Reform for Australian Copyright Defences and Exceptions

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 infringement 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 exclusive rights of copyright are partly defined by the exceptions, in that the rights only exist to the extent that they are not qualified by the exceptions.
• The rights conferred on copyright owners are subject to competing interests which require the delineation of exceptions and limitations to the exclusive rights.

Statutory exceptions include:

• Fair dealing.

• Specific royalty-free exceptions.

• Statutory licenses.

Each of these will be discussed below.

Fair Dealing

The Copyright Act 1968 (Cth) has statutory defences, situations in which the use of copyright works will not amount to copyright infringement. These are known as the fair dealing provisions. A fair dealing with a Pt III work or adaptation or a Pt IV audio-visual item (that is, a sound recording, film, sound broadcast or television broadcast) does not infringe copyright if done for one (or more) of the purposes as outlined in the table below.

The fair dealing provisions intend to mark out areas of free use of copyright materials. These provisions are in the public interest and provide a complete defence to an infringement action. These defences are commonly referred to as exceptions but are more accurately conceptualised as establishing limits to the scope of the bundle of exclusive rights. The fair dealing provisions apply to all categories of works and subject matter and to each of the exclusive rights but are confined to the doing of acts for four specific purposes. They also permit royalty-free use of a substantial part or the whole of the work or subject matter without the authorisation of the copyright owner.

Video overview of Dan Winters on The Difference Between Fair Use and Fair Dealing.

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.

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” and “study” are not defined by the Act but are given their dictionary meaning. “Research” means “a diligent and systematic enquiry or investigation into a subject in order to discover facts or principles”.

Video overview by Nicolas Suzor on Research or Study.

The leading case of De Garis v Neville Jeffress Pidler Pty Ltd considered the meaning of the terms “research or study”.

Several non-exclusive factors may be taken into account in determining whether a dealing for research or study purposes is fair.

In the case of Part III works and adaptations, these factors apply only where the dealing is a reproduction of the whole or part of the work or adaptation, whereas for Part IV audio-visual items, the factors are relevant to the exercise of any of the exclusive rights.

The factors are:¹

• the purpose and character of the dealing;

• the nature of the work or audio-visual item;

• the possibility of obtaining the work or audio-visual item within a reasonable time at an ordinary commercial price;

• the effect of the dealing upon the potential market for, or value of, the work or audio-visual item;

• where only part of a Pt III work, adaptation or audio-visual item is reproduced or copied, the amount and substantiality of the part copied in relation to the whole item.

The Act provides more specific guidelines on the reproduction of literary, dramatic and musical works and adaptations (but these do not apply to audio-visual items):

• If the work or adaptation is an article in a periodical, it is a fair dealing for research or study to copy the whole of the article.²

• It is not a fair dealing to reproduce the whole or part of an article in a periodical if another article in the publication, dealing with a different subject matter is also reproduced.³

In other cases, it is deemed to be a fair dealing to reproduce only a “reasonable portion” of the work.⁴ Where a literary, dramatic or musical work (other than a computer program) is contained in a published edition of 10 pages or more, a reasonable portion is up to 10% in the aggregate of the number of pages in the edition.⁵ In instances where the work is divided into chapters, a reasonable portion is the whole or part of a single chapter even though it may exceed 10% of the number of pages in the edition.⁵

Where the reproduction is of part of a published literary work (other than a computer program or an electronic compilation such as a database) or a published dramatic work in electronic form, the reproduction contains a reasonable portion of the work if the number of words copied does not exceed, in total, 10% of the number of words in the work or, if the work is divided into chapters, the reproduction contains only the whole or part of a single chapter of the work, even though the number of words copied exceeds, in total, 10% of the number of words in the work⁶

Note: These are deemed to be fair dealings, but are not exhaustive. It might be fair to reproduce quantitatively more in all the circumstances.

Criticism or Review

The fair dealing provision for criticism or review applies only if sufficient acknowledgment is made.⁷ For an acknowledgment to be sufficient, it must identify the work or audio-visual item by its title or other description, as well as the author.⁸

The term “sufficient acknowledgement” is defined as:⁹

” an acknowledgement identifying the work by its title or other description and, unless the work is anonymous or pseudonymous or the author has previously agreed or directed that an acknowledgement of his her her name is not to be made, also identifying the authors”.

Video overview by Nicolas Suzor on Criticism or Review.

“Criticism” and “review” are not defined but are given their dictionary meaning.

In the case of De Garis v Neville Jeffress Pidler Pty Ltd at 299-300, Beaumont J referred to the Macquarie Dictionary definitions of “criticism” and “review”:

• “criticism” is used in the sense of “the act or art of analysing and judging the quality of a literary or artistic work; the act of passing judgment as to the merits of something; [and] a critical comment, article, or essay, a critique”; “review” is used in the sense of “a critical article or report, as in a periodical, on some literary work, commonly some work of recent appearance; a critique”.

• “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.

Reporting of the News

Copyright in a Pt III work or adaptation or a Pt IV audio-visual item is not infringed if it is dealt with for the purpose of, or associated with, the reporting of news in the following:¹⁰

• in a newspaper, magazine or periodical, provided sufficient acknowledgement is made of the work or audio-visual item;

• by means of an electronic communication;

• in a cinematograph film.

This section pertains to music incidentally recorded in the course of reporting news by means of broadcast or film, but does not extend to music added to the soundtrack which does not form part of the news being reported¹¹

The fact that news coverage is interesting or may even be entertaining does not negate the fact that it is news, even though it may sometimes be difficult to draw a distinction between news and entertainment.

News reported with humour may still fall within the ambit of the fair dealing provisions.¹²

Disability Access

In December 2017 Australia’s copyright laws were amended to reflect our international obligations under the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.

The new disability access provisions ensure more equitable access to copyright material. The new provisions consist of two free exceptions: fair dealing for access by persons with a disability, and use of copyright material by organisations assisting persons with a disability.¹³

For more information on the changes to Australia’s Disability Access see QUT’s Copyright Guide.

Professional Legal Advice

The Act provides that it is not an infringement to make a fair dealing with a Part III work for the purposes of giving of professional advice by a legal practitioner, a registered patent attorney or a registered trade mark attorney.¹⁴

There is no fair dealing counterpart in relation to the use of audio-visual items for these purposes.

Judicial Proceedings

A general exception from infringement of copyright in sound recordings, films, broadcasts and published editions applies for acts done in the course of judicial proceedings or the reporting of such proceedings¹⁵ or in the course of obtaining professional advice from a lawyer, patent attorney or trade marks attorney.¹⁶ The Act provides that any act done in relation to a literary, dramatic, musical or artistic work for the purpose of a judicial proceeding or the report of a judicial proceeding is exempted from copyright infringement.¹⁷

Parody or Satire

The provisions of the Act apply where a person or organisation can demonstrate that their use of copyright material (both works and audio-visual subject matter) is a fair dealing for parody or satire.¹⁸ The Act does not include a definition of ‘parody’ or ‘satire’ or require sufficient acknowledgment of the work to be made.

Defences relating to parody can be found in other jurisdictions, including the US and member countries of the European Union. The defence for satire may be unprecedented.

The case of TCN Channel Nine Pty Ltd v Network Ten Ltd (Panel case)¹⁹ involved parody and satire, however, the case was finalised before defence was introduced in Australian law. Whether this defence would have made a different is a point of debate.

Historically parody and satire has been accommodated within copyright law to some degree by:

• The definition of “substantial part”: Joy Music v Sunday Pictorial Newspapers;²⁰ AGL Sydney v Shortland County Council;²¹ TCN Channel Nine Pty Ltd v Network Ten.²²

• fair dealing for the purposes of criticism or review: TCN Channel Nine Pty Ltd v Network Ten Ltd²³

• fair dealing for the purposes of reporting the news: Beloff v Pressdram²⁴; BBC v BSB²⁵; Nine Network Australia v ABC²⁶; TCN Channel Nine Pty Ltd v Network Ten Ltd ²⁷

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.

Parody is generally more likely to be considered fair use.

Under the fair use doctrine, the courts have regard to four factors:

• 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; and

• the effect of the use upon the potential market for or value of the copyrighted work.

Specific, Royalty Free Exceptions

Private Copying: Time Shifting

There is an exception for the purpose of time shifting found in the Act.²⁸

If a person makes a cinematograph film or sound recording of a broadcast solely for private and domestic use by watching or listening to the material broadcast at a time more convenient than the time when the broadcast is made, then the making of the film or recording does not infringe copyright in the broadcast or in any work or other subject matter included in the broadcast.

This exception will not apply if an article or thing embodying the film or recording is:

• sold;

• let for hire;

• by way of trade offered or exposed for sale or hire;

• distributed for the purpose of trade or otherwise (not including loaning the article or thing to a member of the lender’s family or household for the member’s private and domestic use);

• used for causing the film or recording to be seen or heard in public;

• used for broadcasting the film or recording.

Video overview by Jennifer Singleton on Time Shifting.

Private Copying: Format Shifting

In addition to allowing private users of copyright to make recordings (as discussed above in time shifting), there is also a provision which allows private users to format shift. Format shifting involves reproducing copyright content in a different format without attracting copyright infringement. An example of this would be reproducing a copy of a CD onto an iPod or other listening device.

Video overview by Lindsay Mengel on Format Shifting.

Video overview by Lachlan McCormick on Format Shifting.

Books, Newspapers and Periodicals

The Act also allows for books, newspapers or periodicals that are in a private collections to be reproduced into another format (eg. scanning an article from a magazine onto your personal computer to keep as a reference).²⁹

Photographs

The Act also permits photographs to be reproduced in instances where the copy owed is in hardcopy form and the user is seeking to format shift this into an electronic form (for example by scanning into a computer). This section also applies where the copy owned is in electronic form and the user is seeking to format shift this into a hardcopy form (for example by printing a digital file).³⁰

Videotapes

The Act permits the reproduction of video cassettes that are owned, into an electronic form (for example reproducing a video cassette onto a DVD).³¹

Backups of Computer Programs

The Act provides limited backup rights for software. The rights only extends to literary works – copying computer games is not allowed.³²

The limits to the exceptions are:

• The original copy you own must be a legitimate copy.

• You cannot sell, hire, lend or give away any copy made but you can lend a copy to a member of your family or household.

• You are free to dispose of the original legitimate copy of a sound recording, but you must not keep any copy you have made from the original.

• Making multiple copies in a similar format is not allowed, either from the original copy you own or from a later copy.

• You are not authorised to remove any anti-copying measures applied by the manufacturer to the material you own.

Private Copying: Music

Private copies of music are permitted to be made only if:³³

• the owner of a copy (the earlier copy ) of a sound recording makes another copy (the later copy ) of the sound recording using the earlier copy; and

  • the sole purpose of making the later copy is the owner’s private and domestic use of the later copy with a device that:

    • is a device that can be used to cause sound recordings to be heard; and

    • he or she owns; and

  • the earlier copy was not made by downloading over the Internet a digital recording of a radio broadcast or similar program; and

  • the earlier copy is not an infringing copy of the sound recording, a broadcast or a literary, dramatic or musical work included in the sound recording;

Then the making of the later copy does not infringe copyright in the sound recording, or in a literary, dramatic or musical work or other subject matter included in the sound recording.

This exception will not apply if the earlier copy or the later copy is:

• sold;

• let for hire;

• by way of trade offered or exposed for sale or hire;

• distributed for the purpose of trade or otherwise (not including loaning the earlier copy or the later copy to a member of the lender’s family or household for the member’s private and domestic use);

  • used for causing the film or recording to be seen or heard in public;

  • used for broadcasting the film or recording.

Computer Software

The Copyright Amendment (Computer Programs) Act 1999, introduced a new Division 4A into Part III of the Copyright Act 1968 – “Acts not constituting infringements of copyright in computer programs”.

The owner or licensee of a computer program does not infringe copyright by making a reproduction of the program:

• in the course of running the program for the purposes for which the program was designed, unless contrary to an express direction or license.³⁴

• in the course of running the program for the purpose of studying the ideas behind the program and the way it functions.³⁵

• for use in lieu of the original copy, or if the original copy is lost, destroyed or becomes unusable.³²

• to obtain information necessary to make independently another program or article to interoperate with the original program any other program, but only to the extent that it is reasonably necessary to obtain such information and to achieve such interoperability; and the information was not readily available to the owner or licensee.³⁶

• for the purpose of correcting an error in the original copy which prevents the program from operating as intended by the author.³⁷

• for the purpose of testing the security of the original copy or network or system of which the original copy is part.³⁸

• Note that most of these exceptions are not excludable by contract.³⁹

Other Specific, Royalty Free Exceptions

Other specific, royalty-free exceptions include:

The performance of a literary, dramatic or musical work or playing a sound recording or film in a school classroom will not infringe copyright.⁴⁰ Similarly, the public performance of a literary, dramatic or musical work or an adaptation of such a work, by the use of reception equipment or a record, at a “premises where people reside or sleep, as part of the amenities provided exclusively for residents or inmates of the premises or for those residents or inmates and their guests” will not be infringing.⁴¹

It is not an infringement to photograph, paint, draw, film or include in a television broadcast a building, a model of a building, a sculpture or a work of artistic craftsmanship which is permanently displayed in a public place or in premises open to the public.⁴²

Copyright in an artistic work is not infringed if the work is included in a film or television broadcast, incidentally to the principal matters represented in the film or broadcast.⁴³ It is also not an infringement to read or recite in public or to include in a sound or television broadcast of a reading or recitation, a reasonable length extract from a published literary or dramatic work or an adaptation of such a work, as long as the work is given sufficient acknowledgement.⁴⁴

Copyright in an artistic work is not infringed by the creator of that work if he or she makes a later artistic work which does not repeat or imitate the main design of the earlier work.⁴⁵

Where there is copyright in a building, copyright is not infringed by reconstructing it.⁴⁶

Statutory Licenses

As noted in Chapter seven, the Copyright Act has two statutory licenses that regulate the copyright material used by educational institutions.

The licenses allow educational institutions to copy and communicate sound and television broadcasts and to reproduce and communicate works and published editions, on the condition that equitable remuneration is paid to an approved collecting society.

The Statutory Broadcast Licence is set out in Section 113P of the Copyright Act and permits educational institutions to copy and communicate radio and television programs from:

• free-to-air radio and television (eg ABC TV and ABC Radio);
• satellite and subscription (pay) radio and television (eg Foxtel); and
• online TV/radio programs from a free to air broadcaster’s website including podcasts and catch up TV provided it has been broadcast by the free to air broadcaster.

Payment is made to Screenrights for the use of radio and television broadcasts under this licence. Screenrights is the declared collecting society that administers the Statutory Broadcast Licence scheme.

The Statutory Text and Artistic Works Licence is set out in section 113P of the Copyright Act and permits educational institutions to make multiple copies of literary, dramatic, musical and artistic works for educational purposes. This licence also allows schools and TAFE institutes to copy and communicate text and artistic works in both hardcopy and electronic form.

Payment under this licence is made to the Copyright Agency Limited (CA), which is the declared collecting society that administers the licence.

Reform for Australian Copyright Defences and Exceptions

There are ongoing issues within Australia regarding the available defences and exceptions under the Copyright Act. Particularly, a number of review bodies, the Australian Law Reform Commission (ALRC) and the Australian Government Productivity Commission (PC), have recommended that Australia adopt a fair use provision modelled off the US doctrine of fair use to replace our current fair dealing provisions.⁴⁷

Video overview by Nicolas Suzor on Reform for Australian Copyright Defences and Exceptions.

The central feature of the recommendations made by the ALRC and the PC was to replace the purpose specific copyright infringement exceptions (the fair dealing provisions) with a general open ended fair use test.

In the US, the fair use exception is based on an assessment of four separate factors:

1. The purpose and character of the use depending on whether the use is commercial or not for profit;

2. The nature of the copyrighted work;

3. The amount and substantiality of the proportion used; and

4. The effect of the use upon the potential market.

The four fairness factors enables users of copyright to effectively use works (depending on the purpose, nature, amount and effect on the market) without having to obtain a licence for such use. This allows users to make an argument as to why they should be able to use the material freely.

The main argument supporting the recommendation to adopt a fair use based exception is the benefits derived from using a tried and tested system such as the doctrine of fair use as opposed to applying the current complex fair dealing exceptions found in Australian law.

Both the ALRC and the PC proposed that the fair use exception was advantageous as it is technologically neutral, promotes the public interest in transformative uses of works and provides breathing room for innovation. It was also proposed that a fair use provision would better align with social norms and consumer expectations. According to recent research into use practices of creatives, “the rules of fair dealing are confusing … with many creators … believ[ing] Australia already has fair use”.⁴⁸

The fair dealing exceptions are a complex set of specific, royalty free exceptions for copyright infringement. A lot of these come under exceptions for private copying and format shifting for example. This system creates a complex Act. The US approach to fair use simplifies these tests and leaves it open to the courts to come up with jurisprudence for when uses will be considered to be fair. Whilst there are some concerns that a judicial based approach (such as the one in the US) may be more unpredictable, empirical evidence suggests that this claim is unfounded.⁴⁹

A key issue with Australia’s current fair dealing exceptions is its inability to recognise and account for transformative uses of copyright law. A transformative use exception allows for a more technological neutral law. For example, the Copyright Act includes provisions that enable time shifting and format shifting of particular works, however the language used in these provisions is specific about the technologies that are used. Because our law is always drafted in retrospect, it can take quite a long time to adapt to new uses.

The debate around fair use really centres on core issues of flexibility, simplicity, and future-proofing Australian law, however, opponents of fair use worry that now is not the time to weaken copyright. They worry that copyright owners need to have stronger rights to control the uses of their works and that any weakening of the right might undercut their incentives and the revenues they can receive from selling access to particular works. There’s a different view of how innovation and creativity occurs which underpins a lot of these debates. On one hand creators need to protect their work and argue that the incentive to create new works is based on the premise their work is protected.

On the other hand, there is a strong social justice component to copyright law. The ability to access and reuse existing culture and knowledge is central to creation and innovation. This argument focuses on an individuals ability to speak and to express themselves and the ability of people to access knowledge. The idea that consumers of information need to be able to exercise their rights to access information underpins the social justice component of copyright law. Fair use provides a fundamental part of the copyright balance by drawing the limitations around what copyright owners can control. This is particularly important in the digital age because nearly everything with copyright material becomes a potential infringement.

In the analogue world, it was never an infringement to read a book or to share a book with a friend. These were in the analogue world, important limits to the monopolies of copyright owners. In the digital world, these acts become infringements. They are reproductions of communications of copyright works. This means that the structure of the balance between rights holders and consumers has once again been shifted. The arguments consumer groups make is that the use is required to restore some of that balance. The argument that the copyright owners make is that the correct balance has also been shifted in the other direction by making infringement much easier and therefore copyright should not be weakened any further and in fact it should be strengthened in order to enable return on investment.

Whether Australia should adopt the recommendations of the ALRC and the PC is still an ongoing debate.

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