Copyright Exceptions

Contributed by Australian Copyright Council and current to May 2022

There are a number of exceptions to copyright infringement in the Copyright Act. If an exception applies to your use of the copyright material, you do not need to get permission from the copyright owner for that use, and you can rely on the exception as a defence to any copyright infringement claim.

If you are seeking to rely on a particular exception to copyright but you are unsure whether the exception applies to your use, you should seek legal advice. You should also be aware that claiming an exception does not prevent a copyright owner from bringing action against you for using their work without their permission if the copyright owner believes that the exceptions do not apply.

Fair dealing exceptions

The Copyright Act contains six fair dealing exceptions for the purpose of:

• research or study (s 40 and s 103C)
• criticism or review (s 41 and s 103A)
• parody or satire (s 41A and s 103AA)
• reporting of news (s 42 and s 103B)
• judicial proceedings or professional advice (s 43 and s 104)
• access by persons with disability (s 113E)

The exceptions work in two parts:

a) that your use of copyright material is for one of the specific fair dealing purposes, and

b) that your use is ‘fair’.

In this context, a ‘dealing’ with copyright material relates to using the material in any of the ways that are exclusively reserved to the copyright owner. Fair dealing is not the same as ‘fair use’, which is a copyright exception that exists in other countries.

Whether or not a person’s use of the copyright material is ‘fair’ is dependent on the circumstances of the case. Courts will consider a number of factors such as whether an objective viewer could consider that the person is genuinely using the material for one of the purposes as set out in the Copyright Act, as well as it being fair in that context.

Factors that may be taken into consideration to whether a use is ‘fair’ include whether the person using the material is doing so for commercial purposes, and whether the copyright owner is out of pocket from the use (for example, where a person copies the whole of a book that is available for sale). While a dealing may be fair in a commercial context, the mere fact that you have used material for charitable or not for profit purposes or that you attributed the creator, does not automatically mean a copyright exception applies.

Set out below is a brief overview of the fair dealing exceptions. For further details, see the Australian Copyright Council fact sheet Fair Dealing: What Can I Use Without Permission.

Research or Study

The fair dealing exception for the purpose of research or study exists in the Copyright Act for the purpose of promoting and facilitating education and research. It is typically interpreted to enable personal research or study, not for people to copy or transmit copyright material to other people for their research or study. For more information see Australian Copyright Council fact sheet Research or Study.

Criticism or Review

The fair dealing exception for the purpose of criticism or review assumes that copyright owners should ordinarily expect to have their works subjected to criticism and review for the purposes of providing potential consumers with information about the works.

Criticism and review may be strongly expressed, and may be expressed humorously, and need not be balanced. The defence may apply where the criticism or review takes place in a commercial context, such as in published books or newspapers or on commercial television.

Reporting the News

The fair dealing exception for the purpose of reporting the news is based in the public interest of promoting the free flow of facts, knowledge, ideas and information.

The key element to determine whether the exception applies is whether the primary purpose is to report or comment on news. Although courts have held that reporting news may involve the use of humour, where the purpose of using material is primarily to entertain, the presence of newsworthy issues is not enough to make the use a fair dealing.

Parody or Satire

The fair dealing exception for the purpose of parody or satire was added to the Copyright Act in December 2006, with the intention of promoting free speech for commentators including comedians, satirists, cartoonists and comics. It enables people to use copyright material for the purposes of parody and satire, provided the use is ‘fair’. For more information see Australian Copyright Council fact sheet Parody, Satire and Comedy.

Provide Access to Persons with a Disability

The fair dealing exception for the purpose of providing access to persons with a disability was added to the Copyright Act in December 2017. Under this exception, if a person has a (vision, hearing or intellectual) disability that causes them difficulty in accessing copyright material, that person, or someone acting on their behalf, may do what is necessary for the person to access a copy. For example, someone might scan a book (reproduce it), convert it into an accessible format (a further reproduction) and email it to the person with a disability (communicate it).

For further detail, see the Australian Copyright Council fact sheet Disabilities: Copyright Provisions.

Judicial proceedings and giving professional advice

It is not an infringement of copyright to use copyright material for the purpose of giving professional advice by a lawyer, patent attorney or trade mark attorney. The use of the material must genuinely be for the purpose of giving such advice and must be ‘fair’. For example, if book is available for sale, it is unlikely that this provision would allow a person to copy the entire item for the purposes of legal advice.

There are also exceptions allowing use of copyright material for the purpose of legal proceedings (e.g. for use in court).

Other copyright exceptions

Libraries and Archives

There are a number of provisions under the Copyright Act that allow the staff of libraries and archives to reproduce and communicate copyright material in their collection for particular purposes without permission from the copyright owner. Staff can copy the following:

• for clients research or study
• for other libraries
• for preservation
• for administrative purposes.

For further details, see the Australian Copyright Council fact sheet Libraries: Introduction to Copyright.