Fair dealing is a type of principle that helps to assess whether or not a copyright has been infringed. Essentially, through fair use and fair dealing, we are able to use copyrighted work in our own work and projects without breaching any laws.
For example, these works include literary, dramatic, artistic works, musical works, sound recordings, films, TV and radio broadcasts.
One of the primary differences is that while fair dealing as a term is used more commonly in Australia, the term fair use is used in the United States of America. In Australia, the Copyright Act 1968 contains all principles in relation to Australia’s fair dealing principles.
In this article, we go over the meaning of fair dealings and fair use and explore if there are any differences between the two terms. To begin with, the phrase “fair dealing” is used only in Australia.
What is Fair Dealing in Australia?
The fair dealings principle in Australia clearly outlines the way that you can use copyrighted works legally i.e., without infringing copyright. Essentially, this means that when you are covered by the fair dealing principle, you do not have to obtain permission from the copyright owner.
There are some specific purposes for which the fair dealing applies. According to the Australian Copyright Council, you can use copyright without permission for the following purposes:
This includes for:
- Criticism or review
- Research or study
- Parody or satire
- Judicial proceedings or professional advice
- Reporting the news
- Access by a person with disability
- Professional advice by a lawyer
What Is Fair Use?
In many countries such as the US and Malaysia, for instance, fair use is an exception. “Fair use” has more general implications, whereas fair dealing has a narrower scope.
Fair use is a similar principle where people can use copyrighted works in their own work as long as it is “fair.” In some ways, it can be said that the fair use principle provides more flexibility when it comes to using others’ works in your own work.
The “fairness factors” that is used under the fair use principle includes certain statutory considerations. These include the:
- Nature of the copyrighted material,
- Purpose and character of the use,
- Effect of the use of the copyrighted material on the market – if it affects the value of the copyrighted material
- Amount and substantiality of the part used
For example, when discussing nature of the copyrighted material, we are mostly concerned about whether the work was published or unpublished. It is easier to justify the matter if you reuse publications that were more factual in nature.
Copyright legislation is quite extensive. Those whose copyrighted works have been used in an unfair manner do have the right to protect their interests. It is important to protect your creative work with copyrights and trademarks wherever possible.
Author bio:
John Bui is the Principal Solicitor for JB Solicitors – a law firm based in Sydney, Australia. John is a Nationally Accredited family law Mediator and Arbitrator with over 10 years’ experience in family law and commercial litigation.
