Fair
Dealing
The fair dealing provisions in the Act are an exception to
the exclusive rights of copyright owners. They allow some copying and/or
communication
for certain purposes to be done for free without infringing copyright.
Fair dealing only applies to:
- research or study: section
40(1) of the Act provides that
copyright in a work or an adaptation of a literary, dramatic, musical
or artistic
work is not infringed by a fair dealing for the purpose of research
or study. Similarly, under section 103C(1) copyright in an audio-visual
item, or in a work included in an audio-visual item, is not infringed
by a fair dealing made for the purpose of research or study;
- criticism and review: section
41 of the Act provides that
copyright in a work or an adaptation of a literary, dramatic
or musical work,
is not infringed by a fair dealing for the purpose of 'criticism or review',
whether of that work or of another work, provided sufficient
acknowledgement of the work is made. Any acknowledgement should identify
the author
and identify the work/audio-visual item from which the copies are taken
by its title or other description. This category will rarely apply to
multiple copying for distribution to students. However, it may apply
to copying you do for yourself or for other staff. It may also
apply to communications
between academics for the purpose of academic criticism and
discussion;
- news reporting: section
42 of the Act provides that copyright
in a work or an adaptation of a literary, dramatic, musical or
artistic work, is not infringed by a fair dealing if:
- it is for the purpose of, or is associated with, the
reporting of news in a newspaper, magazine or similar
periodical and
a sufficient acknowledgement of the work is made; or
- it is for the purpose of, or is associated with, the
reporting of news by means of broadcasting or in
a cinematograph film
- professional legal advice: section
43 of the Act provides that the copyright
in a literary, dramatic, musical or artistic work is not infringed by anything
done for the
purposes
of a judicial proceeding
or
of
a report
of
a
judicial proceeding.
These provisions in the Act enable a reasonable
portion of a work for any of the above purposes to be copied.
However, the
Act is not clear
on what constitutes a 'reasonable portion'. The matters which must
be considered
in determining
the fairness of the dealing
include:
- the purpose and character of the dealing - why are
you copying the material?;
- the nature of the work, adaptation
or audio-visual item;
- the possibility of obtaining the work, adaptation or audio-visual
item
within a reasonable time at an ordinary commercial price - how widely available
is the work?
- the effect of the dealing upon the potential market; and
- in a case where only part of a work, adaptation or audio-visual
item
is copied or communicated - the amount and substantiality of the part copied
or
communicated
in relation
to
the whole item.
In
addition, the
following limits prescribed in
other parts
of the
Act may
assist to
determine if
you are
copying a
'reasonable portion':
- 10% or one chapter of a book (whichever is the greater);
- more than this if the work is out of print or unobtainable in
a reasonable
time;
- the whole or part of an article in one issue of a periodical;
- two or more articles in one issue of a periodical if they are
on the
same subject;
- the whole or part of a literary or dramatic work in a published
anthology
if not more than 15 pages;
- an artistic work which accompanies a literary or dramatic work
for the
purpose of explaining or illustrating text;
- the whole or part of an artistic work if it is not separately
published
or is unobtainable in a reasonable time.
Where you are copying in accordance with these
fair dealing provisions, permission need not be sought from
the copyright
owner,
and no payment to the copyright
owner is required.
COPYRIGHT AND THE WEB
Printing, downloading, copying and communicating material from the
web
Material available on the internet may be covered by copyright - just
because it is there, does not mean it is free to use. You may infringe
a person's copyright by:
- printing material from a website without the owner's permission;
- saving the material from a website to a disk or hard drive; or
- e-mailing the material from a website to another person.
If you want to print, download, copy or communicate material that
is available on the web you should first check to see whether
there is
a copyright statement on the website. This statement will
tell you how the creator will allow their work to be used.
Alternatively, you could try to contact the website owner or
webmaster for the site - there is usually an e-mail address
at the bottom of
a website that will give you a starting point in this
regard. If there is no statement about copyright on the website
you should not assume that you can copy or communicate
the material other than for permitted dealings or other
provisions of the Copyright Act. You should not assume that you can
distribute
copies of the material to other people or use it for
commercial purposes.
Fair dealing provisions apply to copyright material
on the web. If you are using the material on the
internet for the
purposes of study,
criticism or review, reporting news or giving legal
advice,
you may be able to print and/or download reasonable portions
of material from the web without obtaining the
permission from the copyright owner.
