Fair dealing

Fair dealing is perhaps the best known of the copyright defences. Most students rely on the defence of fair dealing for the purpose of their own research or study when they photocopy reasonable amounts from books, journals, newspapers and magazines.

The Copyright Act recognises that there is a public interest in allowing people, in specific circumstances, to use copyright material without seeking permission from copyright owners or their representatives. In those circumstances, although the use in question would normally be regarded as an infringement, the Act sets out a defence or exception that deems that use not to be an infringement.

The fair dealing provisions permit free use of copyright material in a number of situations. To rely on a fair dealing defence a person must first show that he or she had acted with at least one of the following purposes:

• research or study;
• criticism or review;
• reporting the news;
• giving legal advice; or
• participating in judicial proceedings.

If the dealing does not fall within one of these purposes, the defence will fail. If it does, the fairness of the dealing must then be considered. For researchers and students copying from printed works (i.e. for the purpose of research or study), there are clear guidelines that state the copying of 10% of the pages or one chapter of a book, or a single article from an issue of a journal, is considered fair. For literary and dramatic works in electronic form, 10% of the words, up to one chapter or one article will be considered fair. It is also fair to copy more than one article on the same subject matter from a journal. In other cases, fairness is judged by reference to factors such as:

• the purpose and character of the dealing;
• the nature of the material;
• the effect on the market for the material;
• the commercial availability of the material; and
• the amount and substantiality of the part used.

The line between fair dealing and infringement can be very difficult to draw. It is generally more sensible to be cautious if doubts exist as to the 'fairness' of a particular dealing.

What about digital copying?

Under the Digital Agenda amendments to the Copyright Act it is now clear that the fair dealing defence also applies to digital copying. A person can now make a reproduction of an article (or multiple articles dealing with the same subject matter) in a periodical publication, or a reasonable portion of a literary, dramatic or musical work, in electronic form, for the purposes of research of study.

A “reasonable portion” of a published literary or dramatic work in electronic form is 10 per cent of the words in the work, or a chapter of the work if is organised in such a way.

For a musical work a reasonable portion will be determined by considerations such as the work’s commercial availability, the impact of the dealing on any potential market, and the amount of the work reproduced.

More extensive reproduction of a work in electronic form may constitute fair dealing for the purpose of research and study. To determine whether it does, as with hardcopy reproductions, it is necessary to have regard to the criteria set out in section 40 (2) of the Act.