Last updated 24 August 2016
In some cases, what would seem to be an act of infringement may be protected by the exceptions in the Copyright Act 1968 (Cth) (Copyright Act). These include the following acts (ss 43–44):
- temporary reproductions that are made in the course of communication
- backing up computer programs
- copying for the purposes of judicial proceedings and professional legal advice
- inclusion of works in collections for use by places of education
- importation of non-infringing books and sound recordings.
Some other exceptions to infringements are (ss 45–64):
- recitation or reading in public or in a broadcast. However, the extract must be from a published work, be of a reasonable length and sufficient acknowledgement of the work must be made
- performance of works at a person’s home (i.e. where a person lives or sleeps)
- some reproductions for the purpose of broadcasting
- sound broadcasts by people who hold print disability radio licences
- copying of works in archives or libraries for particular purposes
- manufacture of a record of the work. This exception is subject to certain conditions, including the payment of an agreed royalty (between the copyright owner and the manufacturer) to the copyright owner. In the event that there is no agreement in force, an amount equal to 6.25% of the retail selling price of the record will be applied.
In addition, there are exceptions to infringements of copyright in artistic works (ss 65–73):
- the inclusion in a film or broadcast, sculptures and works of artistic craftsmanship that are permanently in a public space
- painting, drawing, engraving or photographing sculptures and works of artistic craftsmanship situated permanently in public places
- incidental filming or broadcasting of artistic works.
Private use exceptions for consumers
The first private use exception enables consumers to tape a broadcast of a radio or television program for private and domestic use to be watched or listened to at a more convenient time, known as time-shifting (s 111 Copyright Act). Private and domestic use is defined in s 10(1) to mean ‘private and domestic use on or off domestic premises’. The recording may be lent to a family member or household, so long as it is used for that person’s private and domestic use. If a copy is sold, let for hire, offered for sale or hire, or distributed for trade or other purposes, then the recording becomes an infringing copy, both in respect of its making and subsequent dealing.
The second private use exception allows a person who has purchased a legitimate copy of some categories of copyright material to make a copy in a different format for their private and domestic use, known as format-shifting. A common example of format-shifting is where individuals wish to store their personal music collection recorded on CDs, audio tapes or vinyl records in the memory of MP3 players or personal computers. Under the format-shifting provisions of the Copyright Act, it is permissible to copy without infringing copyright:
- the content of a book, newspaper or periodical that one owns into another format (s 43C)
- a photograph from hardcopy into electronic format or from electronic format into hardcopy form (s 47J)
- a sound recording from CD, tape, record or digital download to any other format (s 109A) except podcasts (s 109A(1)(b))
- a film from video to electronic format (s 110AA).
Fair dealing is a defence provided for in the Copyright Act, which allows the use of copyright materials for certain limited purposes. The fair dealing defence applies when the work is used for the purposes of (ss 40–43):
- research or study
- criticism or review
- reporting the news
- legal advice and judicial proceedings
- parody or satire.
Research or study
It is not an infringement of copyright to copy a reasonable portion of a work, so long as it is for the purpose of research or study (ss 40(1), 40(7)(b), 103C(1) Copyright Act). Research and study are not defined in the Copyright Act but are usually given their dictionary meaning. The following factors are taken into consideration when determining this category:
- the purpose and character of the dealing
- the nature of work or other subject matter
- the effect of dealing on the potential market, value of the work or other subject matter
- the possibilities of obtaining work or other subject matter within a reasonable time and at the ordinary commercial price
- the amount and substantiality of the portion copied in relation to the whole thing (ss 40(2), 103C(2)).
In the case of literary, dramatic and musical works, the Copyright Act provides further guidance as to what constitutes a fair dealing for purpose of research or study. For example, one whole work may be copied where the work is an article in a periodical (s 40(3)).
Criticism or review
When a Part III work, audio-visual material or an adaptation of a work is copied without permission, it will not be an infringement if the purpose of the copying is for criticism or review, so long as there is sufficient acknowledgement (ss 41, 103A Copyright Act).
Reporting of news
It is not an infringement of copyright in a work, audio-visual material or an adaptation of a work if the purpose of the copying is for the reporting of news in a newspaper, periodical, magazine or in a broadcast or film (ss 42(1), 103B(1) Copyright Act). However, the source must be sufficiently acknowledged. Additional protection is given to music that has been copied incidentally in the course of reporting the news by broadcast or film (s 42(2)). However, this does not extend to music that is added to a soundtrack that does not form part of the news report.
Legal advice and judicial proceedings
The use of a work for the purpose of giving professional legal advice or in the course of a judicial proceeding is not an infringement of copyright (s 43 Copyright Act).
Parody or satire
A fair dealing may be made of a literary, dramatic, musical or artistic work for the purpose of parody and satire (s 41A Copyright Act). While there has been little litigation on this defence, the government gave some guidance on the meaning of the terms, when it introduced the defence. It is
… appropriate to require that a use for the purpose of parody and satire should be ‘fair’. Parody, by its nature, is likely to involve holding up a creator or performer to scorn or ridicule. Satire does not involve such direct comment on the original material but, is using material for a general point, should also not be unfair in its effects for the copyright owner.
Additional exceptions contained in the Copyright Act are:
- non-commercial uses by libraries or archives (s 200AB(2))
- non-commercial uses by educational institutions for educational instruction (s 200AB(3))
- uses for or by a person with a disability where the use is for the purpose of making the work more accessible (s 200AB(4)).
The new fair dealing exceptions covered will not apply where an existing exception or statutory licence already operates (s 200AB(6)).
The use must not be made for the purposes of obtaining a commercial advantage or profit and must satisfy the following conditions of the three-step test:
- It is a special case.
- It does not conflict with the normal exploitation of the work.
- It does not unreasonably prejudice the legitimate interests of the owner of the copyright or a person licensed by the owner of the copyright.
Libraries, archives, collecting institutions and educational institution amendments
The definition of ‘library’ includes ‘a library all or part of whose collection is accessible to members of the public directly or through interlibrary loans’ (s 49(9) Copyright Act). This means that a library that is conducted for profit, such as those in a law firm or an engineering firm, can rely upon the library copying provisions in ss 49 and 50 of the Copyright Act.
Educational institutions are also allowed to proxy cache websites subject to certain conditions, copy and communicate free-to-air broadcasts made available online (e.g. podcasts), and communicate material so it can be seen and heard by a class (e.g. a film shown via a re-articulated system) (ss 200–200AA).