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One of the ways you can use material without the permission of the copyright owner is using an exception to copyright.
There are specific limits and exceptions built into copyright to encourage the sharing of knowledge. If you don’t have permission to use copyright protected material there may be an exception that allows use without infringement.
The Australian Copyright Act 1968 has more than 90 exceptions. The most well known and commonly used are the fair dealing exceptions. There are also many other specific exceptions that cover activities like reading aloud, taking photographs of public statues, or technical reproductions. You can find a complete list on the Australian Copyright Council’s website.
Fair dealing exceptions
It is often wrongly assumed that Australia has fair use like the United States. We do not. In Australia we have fair dealing, which allow uses that are fair and for specific purposes.
It is important for information professionals to know the fair dealing exceptions as clients will often ask questions related to the exceptions while using items in collections.
A fair dealing with a literary, dramatic, musical or artistic work, with an adaptation of a literary, dramatic or musical work or with audio-visual items is not an infringement of copyright where the dealing is for the purpose of:
- Research or study;
- Criticism or review;
- Parody or satire;
- Reporting of news;
- Judicial proceedings or professional advice; or
- Providing access for people with a disability.
Research or study
The use of copyright material for the purpose of research or study is not an infringement provided the use is fair (see ‘Fairness factors’ below).
The exception is not dependent on the person being student enrolled at an educational institution. It includes independent research or study, such as researching a family history or researching for an article or blog post.
Criticism or review
Fair dealing also includes criticism or review. You can use copyright material in order to make a judgement or comment provided the use is fair (see ‘Fairness factors’ below). When using the provision you must also acknowledge the author and title of the work.
Parody or satire
In 2006 Australia introduced fair dealing for the purpose of parody or satire where that use is fair (see ‘Fairness factors’ below). Those terms are not defined in the Copyright Act and there has not been a court case related to this provision as yet. A court is likely to consider the definitions of ‘parody’ and ‘satire’.
A parody is an imitation of something else, designed to comment on the original or its creator. Often for parody to work parts of the original need to be included. Satire is taken to involve the use of irony, sarcasm or ridicule to expose, denounce or deride characteristics or actions such as vice or folly.
Reporting of news
Newspapers, magazines and periodicals and broadcasters can use copyright material to report or comment on the news, provided the use is fair (see ‘Fairness factors’ below). When using the provision you must also acknowledge the author and title of the work.
Judicial proceedings or professional advice
Copyright material can be used for the purpose of giving professional advice by a lawyer where the use is genuinely for the purpose of giving advice, and provided the use is fair (see ‘Fairness factors’ below).
Providing access for people with a disability
The new fair dealing was introduced as part of the Copyright Amendment (Disability Access and Other Measures) Act 2017 which commenced on Friday 22 December 2017. The disability provisions were enacted in line with Australia’s obligations under the Marrakesh Treaty for people with print disability (Marrakesh Treaty).
They include a fair dealing exception for the purpose of giving people with a disability access to the material and an exception to assisting people with a disability to access material. In order for the fair dealing provision to apply, the use of copyright material must be for the purpose of access by people with a disability, provided the use is fair (see ‘Fairness factors’ below).
Each fair dealing requires the use to be fair. This begs the question, ‘What is fair?’
Fairness is determined by considering all circumstances, including:
- The purpose and character of the dealing – eg. whether it was a commercial or noncommercial use.
- The nature of work used.
- The possibility of obtaining the work within a reasonable time at an ordinary commercial price.
- The impact on the copyright owner.
- Where part of the work is reproduced the amount and substantiality of the part copied in relation to the whole – eg. 10%, or one chapter, or one article is deemed fair for research and study.
Private copying exceptions – format- and time-shifting
There are some exceptions for private copying, the main two exceptions are for format-shifting and time-shifting. Format-shifting allows you to copy certain types of material that you own for private and domestic use into a different ‘format’ – e.g. copying a CD to MP3 format. The time-shifting exception allows you to record a television or radio broadcast to watch or listen to it later. Both provisions are for personal use only.
Sometimes members of the public will try to rely on these provisions to copy items in collections. Generally the person seeking to format shift material must be the own of the material in the original format and be the one to make the new format. Similarly a person seeking to rely on the time-shifting exception must have been the one to record the broadcast.
Libraries and archives exceptions
Most important for libraries and archives are the library and archive exceptions. The most commonly used of these are the exceptions for:
- Document delivery – allowing material to be provided to clients for research and study
- Interlibrary loan – allowing material to be provided to other libraries for their clients, or for inclusion in their collection
- Preservation – allowing material in a collection to be copied and communicated to protect it from deterioration
- Flexible dealings – allowing other uses as part of maintaining or operating the library or archive, such as online publication and exhibitions
There are also special provisions for libraries and archives in, or working with, education, government or disability services.
The document delivery provision allows libraries and archives to reproduce and communicate works users request for the purpose of research and study. This could be making a photocopy or material or emailing a digital scan.
The document delivery provision in section 49 of the Copyright Act allows libraries and archives to reproduce and communicate published written, artistic or musical works for users who have requested a reproduction of content in writing and who have made a declaration signed by them that they:
- Require the reproduction for the purpose of research and study
- Will not use it for any other purpose.
- Have not been supplied with a reproduction of the same material in the past.
The requirement that such a declaration be in writing does not apply where the client is in a location not near the library or archive, but they must also include in their declaration a statement to the effect that because of their location they would be unable to provide a written declaration soon enough to enable reproduction and supply before the time by which they need it.
As long as the librarian or archivist handling the request is satisfied that the nothing in a declaration is untrue they may reproduce the material and supply it to the user. This could be making a photocopy of material or emailing a digital scan of it.
The interlibrary loan provision in section 50 of the Copyright Act allows libraries and archives to reproduce and communicate articles and works to another library for inclusion in their collection or to supply a user of that library who has made a request under section 49 (see Document Delivery).
Changes that came into effect with the Copyright Amendment (Disability Access and Other Measures) Act 2017 simplified the rules related to preservation. A library or archive may use copyright material for the purpose of preservation of copyright material they hold in its original form and the authorised officer is satisfied that a copy cannot be obtained in the preservation format that is best practice.
Section 200AB – Flexible dealing
Section 200AB of the Copyright Act was introduced in 2006 to provide a flexible exception to enable copyright material to be used for certain socially beneficial purposes. It has become the default exception for institutions providing public access to orphan works.
It applies in situations where no other exceptions apply. It requires that any use is noncommercial and that:
- The use will not prejudice the copyright holder.
- The use will not conflict with normal exploitation of the work.
- The use is a special case.
Our A User’s Guide to the Flexible Dealing Provision for Libraries, Educational Institutions and Cultural Institutions provides more comprehensive information about section 200AB and its practical uses.