About fair dealing and fair use
Fair dealing is Australian law and relates to a specific set of provisions within the Copyright Act (1968). These are a set of rights awarded to the public in relation to the use of copyright works without permission.
Fair Use is US law and relates to a specific set of provisions within the US Digital Millennium Copyright Act (DMCA). It allows members of the public to reproduce copyright works without the permission of the copyright holder. Fair Use does not apply in Australia.
The fair dealing provisions require you to undertake a genuine act of fair dealing. This means you should only use other people's work for one of the provisions below.
All uses of copyright works outside of fair dealing will require the permission of the copyright owner or holder. This also includes demonstrating or showing your work to others, for example as part of competitions or film nights.
Fair dealing provision for research or study
When you are undertaking a course of instruction or personal private research.
This provision allows students and researchers to rely on using a reasonable portion of a copyright work (e.g. 10% or 1 chapter) as part of their research or study. For artistic works, videos, film and sound recordings, there is no simple defined rule as to how much you can copy for research and study purposes. Reasonable is the key factor: reasonable in terms of the amount of works used, and reasonable in terms of the nature of the use.
This fair dealing provision is a closed provision, which means it only applies during a course of study or research. Unlike Creative Commons or free licensed works, copyright works can only be kept on RMIT's online platforms, such as Canvas, while you are studying. Once you finish your studies, you must delete any copyrighted materials you have downloaded.
The fair dealing provision for research and study does not allow posting to public sites such as Blogger, lssuu or other open publishing platforms. Showing works to others as part of a public event, exhibition or competition is not covered by fair dealing for research and study and will require the permission of the copyright holder.
Other fair dealing provisions
The following provisions of ‘criticism and review’ and ‘parody and satire’ are provisions that are open to the public yet are untested areas of law, care needs to be taken when relying on these provisions publicly. It is your own risk to rely on these provisions. Criticism and review, parody and satire, if used publicly needs to be for the genuine act within the purpose of the provision, and adhere to the fair dealing factors.
For criticism or review
When you are undertaking a legitimate task that involves criticising or reviewing a copyrighted work.
- using an image of a contemporary painting where a copy the work is used as part of the overall act of reviewing or criticising the work. This would more than likely be considered a legitimate use of a work in reliance on fair dealing, as the act of reviewing or criticising is a genuine act. An act of forming an opinion on the work - the painting.
- a magazine review about a new film release that includes an image of the DVD cover could be considered a legitimate reliance on the fair dealing provision of criticism or review. As the act of review or criticism is a genuine act, an act of forming an opinion on the work - the film.
For parody and satire
When you are transforming someone's original work into a parody or satire.
Copyright holders don’t usually licence criticism of their works, such as an adaption/mashup, that could cast them and the brand in a bad light. If you intend to use a copyrighted work for the purpose of parody or satire, it must be a legitimate use that transforms the original work into a work that is either satirical or humorous. There are important considerations you must make:
- are you planning to use a substantial amount of the existing work?
- is your usage of this work likely to interfere with its existing or potential market?
- is what you are planning to use an important part of the work?
- and in using that part, would your work compete in the market place with the original work?
If a substantial amount of the original work has been used, and the part used was an important part of the original work, and the use could have been licensed within the existing market, then the use would most probably be considered unfair and a breach of fair dealing/copyright law.