Copyright: Copyright & Fair Dealing

Quickguide to Using Copyright

This Quick Guide breaks copyright down by license type, and outlines the ways you can use different copyright material.

Remember to always cite all sources used and refer to your unit outline to check which referencing style you should use.

Fair Dealing

Any substantial use of a Copyright Work (or Subject Matter Other Than Work) requires either Permission from the Copyright owner (including a Licensed condition such as an eBook User agreement), or a Statutory exemption (like Fair dealing.)

Note: In-substantial use of a Work / Subject Matter Other Than Work may be used freely, though must still be appropriately cited and acknowledged. However, this is limited to a section as small as a quote of 20 words or less (and not to be used in a commercial publication), or a section materially In-substantial to the Work (a general line from a song may be in-substantial, a line from the chorus may be substantial use -- see the Australian Copyright Council Information sheet on Quotes and extracts.)

Further, note that Australian copyright law does not have "Fair use" exemptions, as does United States law, however, there are "Fair dealing" exemptions (see the Act ss 40-43 and ss 103A-103C) that allow limited use of a "reasonable portion" of copyrighted material. This "reasonable potion" of a Work can be used without seeking permission from the Copyright owner. These Fair dealing Exemptions are:

• Fair dealing for research and study

Note: This material can only be used for personal use, or where shared by Students in a class-setting or password-protected Learning Management System (LMS) site like Blackboard or Canvas, and must not be made publicly available.

In addition to Fair dealing provisions, ECU has Statutory Education and Voluntary Licenses to cover Textual, Broadcast and Recorded materials, as well as for Public Performance rights. These Statutory and Voluntary Licenses allow your Lecturers to use materials in-class (on-campus and online) for the purposes of teaching.

• For the purpose of access by persons with a disability

• For purpose of criticism or review

• For purpose of parody or satire

Note: "Parody" and "Satire" are very specific requirements, and are not merely synonymous for "humour."

Note: Libel laws may still apply.

• For purpose of reporting news

Note: There is no "transformational" exemption under Australia's Fair dealing provisions, unlike the United State's Fair use laws. Thus, remixes and memes are, strictly speaking, Infringement under Australian law (if permission has not been granted by Copyright owners.)

Fair Dealing: What Can I Use Without Permission

What is a "reasonable portion"?

The Fair dealing Exemptions for Disability access, Criticism or review, Parody or satire, or Reporting the news do not have limits as to the amount of material reproduced, through they are exact about the purpose of the use.

Where using the provision for "Research and study" there are two general ways to work out what is "reasonable" under Fair dealing:

Firstly, a set amount for Copyright material that can easily be calculated (e.g. text based material) (Copyright Act 1968 (Cth) s 10 2(b)):

• 10% of the number of pages (if it’s text or sheet music and is more than 10 pages long)
• One chapter (if it’s divided into chapters) either printed or electronic
• An article from a newspaper, magazine or journal (or two articles if it is from a special issue on the same theme)
• 10% of the number of words in an electronic work (e.g. from the Internet)

Secondly, a judgment call on what is being copied (photos, images, film, etc.) (Copyright Act 1968 (Cth) s 103c), a good rule of thumb may be:

• A small amount of music to illustrate a technique, an image to demonstrate a skill, diagram to show where parts go together
• A whole image or diagram, 30 seconds of a piece of music, a minute of a film

Finally, regardless of the amount of material being used, Australian law requires you to consider the following "fairness test" (Copyright Act 1968 (Cth) s 40(2)) (similar to the Berne Convention's 3-Step Test):

1. Use of these exceptions should not be "overly broad" (each use should be a "certain special case" -- meaning materials should not be copied en masse or on spec),
2. Use should not "rob right holders of a real or potential source of income," or "conflict with the normal exploitation of the work" (is the material available for purchase at a ordinary commercial price in a reasonable time?) and
3. Exceptions cannot "do disproportional harm to the rights holders" (i.e. "prejudice legitimate interests")

Fair Dealing obligations

There are obligations you need to adhere to when using copyright material under Fair dealing, you must:

• Attribute the material (this is in addition to Referencing, see the page on Referencing & Copyright on the Guide menu, paying particular attention to the Captions section.)

This can be done in a number of ways:

• A citation list or bibliography
• A credits list at the end of a video
• Verbal thanks at the end of a recital or music program
• A reference slide at the end of a PowerPoint presentation
• Clickable link under the image

Copying by Students Based Outside of Australia

Australian copyright law only applies when copying is done in Australia or materials are communicated from a server within Australia. If you’re doing an Edith Cowan University course in an overseas location then you’ll need to comply with the copyright legislative requirements of the country you are based in. Most countries have provisions similar to Australian law which permit limited copying for personal study and research.

Public Domain and Creative Commons

"Public domain" and "Creative Commons" (or a similar "CopyLeft" license) are copyright statuses for creative works that have either expired from their Copyright terms, or have been released by their owners with a limited release of public usage rights.

Using "Public domain" or "Creative Common" (CC) Works allows you to use material royalty-free without having to request usage rights. This can be used publicly, outside of the educational setting.

However, note that CC and Copyleft Licenses come in many varieties, and some licenses have restrictions, such as "Non-Commercial" use only. See our page on Creative Commons and Creative Commons Australia for further details.

You must acknowledge Public domain and Copyleft sources as per usual, and include notice in your caption (see the Referencing images page of this guide.)

Copyright Duration

In Australia, Copyright in published Works generally lasts for the life of the author plus 70 years.

For unpublished Works Copyright duration is set by whether the work was made public in the Creator's lifetime (see the table below for more information).

The duration of Copyright in Subject matter other than Works (films and sound recordings for example) is more variable, but generally is 70 years from the end of the year of first publication. There are a few variations from these general rules: Before 1 January 2005, the term of Copyright in Australia was life of the author plus 50 years for published works, and 50 years after publication for audiovisual items. The extended term of 70 years applies only to material that was still in Copyright on 1 January 2005. If the Copyright had expired by that date, it stays expired.

Crown Copyright refers to material made or first published by state, territory or commonwealth government. The term of Copyright for these Works is generally 50 years after the date created.