-- JonathanMo - 14 Sep 2015

Restrictions on the Exercise of Rights: Defences and Fair Dealing

There are a number of provisions allowing the free or paid use of copyright materials. These include use by educational institutions, by libraries and archives, for judicial proceedings, government use, various uses related to public performance and display of works, and fair dealing.

Libraries can copy certain types and amounts of copyright material for their users, for their own collections, and for other libraries. To be entitled to copy and supply to users and to other libraries, a library's collection (or part of it) must be accessible to members of the public. Libraries can use copyright material to maintaining their collections or for archives, provided certain conditions are met. Amendments to the CA by the Copyright Amendment (Digital Agenda) Act 2000, extend the protection provided to a library (including libraries within educational institutions) in relation to copying and recording equipment it provides (such as photocopiers, scanners, computer terminals, and audio and video recording equipment), where this equipment might be used to infringe copyright.

The major fair dealing provisions are for:
  • research or study [CA s.40]
  • criticism and review [CA s.41]
  • reporting news [CA s.42]
  • judicial proceedings or [CA s.43]
  • parody or satire.
'Research' must be a diligent and systematic inquiry or investigation into a subject in order to discover facts or principles. Also, the term 'research' and its application must apply to the research of the defendant, not that of its customer [CA s.40].

In respect of the use of copyright material for the purpose of criticism or review, there must be 'cognitive input' [CA s.41]. See TCN Channel Nine Pty Ltd v Network Ten Pty Ltd [2002] FCAFC 146; (2002) 118 FCR 417; 190 ALR 468.

In respect of use for news reporting, there must be a 'report of a recent event' or at least a 'productive or creative' analysis improving the original. See Nine Network Australia Pty Ltd v Australian Broadcasting Corporation[1999] FCA 1864; (1999) 48 IPR 333; De Garis v Neville Jeffress Pidler Pty Ltd [1990] FCA 352; (1990) 37 FCR 99; 18 IPR 292.

The meaning of 'fair' is a question of degree. The CA sets out two situations deemed fair when dealing with copyright material for research or study and sets out guidelines which should be applied in other cases. First, for text or music published as an edition of ten or more pages, it is fair to copy 10% of the number of pages or one chapter, if the work is divided into chapters (for text material published in electronic form, it is deemed to be fair to reproduce one chapter or 10% of the number of words). Second, it is fair to reproduce an article from a newspaper or journal or more than one article if each article relates to the same subject matter.

The CA lays down some factors for working out whether the copying is fair in relation to copyright material for research or study purposes, namely:
  • the purpose and character of the copying (for example, whether for a course of study or a commercial activity)
  • the nature of the work
  • whether the work being copied is commercially and readily available
  • the effect of the dealing on the copyright holder's market potential market for, or value of, the work (for example, making more than one copy is less likely to be fair than making one copy)
  • in a case where part only of the work is copied, the amount and substantiality of the part copied in relation to the whole work.
According to Lord Denning in Hubbard v Vosper [1972] 2 QB 84:
You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then, you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair.

However, even with the exemption provided by the fair dealing provisions above, the copyright holder is still entitled to 'sufficient acknowledgement' of the work [CA ss.41-42]. This means '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 name is not to be made, also identifying the author [CA s.10(1)].

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