Exceptions to Copyright

• Teaching provisions
• Insubstantial portions
• Fair Dealing provisions
• Public Domain
• Personal provisions

There are limited exceptions in the Copyright Act that allow you to use material without requiring permission from the copyright owner.

Teaching Provisions

These provisions are only available for use when teaching a class of enrolled students:

• Showing material in class (Section 28)
• Using content recorded from radio and TV (Section 113P)
• Using text and images for teaching (Section 113P)

Insubstantial portions

You can use insubstantial portions without requiring permission or a licence.

It can be hard to judge what is "insubstantial", and it isn't defined in the Act, however decisions regarding what is “substantial” are judged on both a quantitative and qualitative  basis.

Choose extracts carefully: a short quote or extract from a much larger work would be considered an insubstantial portion, but if the extract was particularly distinct or important to the overall work (such as a line from a song chorus or a plot twist) that would be considered “substantial”.

While permission is not required to use an insubstantial portion, attribution is still required, so provide citations for any insubstantial portions you use.

If you are using more than an insubstantial portion, permission may be required from the copyright owner unless your use is covered by an exception in the Copyright Act.

Fair Dealing provisions

The Australian Copyright Act contains fair dealing exceptions for:

• study or research
• criticism or review
• parody or satire
• reporting the news
• judicial proceedings.

In each case, your use must be considered 'fair and reasonable'.

What are 'fair and reasonable amounts'?

The Copyright Act defines fair and reasonable amounts as:

• 10% of the total number of pages (or 10% of the total number of words for works with no page numbers), or
• one chapter for most textual material, or
• one article per journal or magazine issue, unless on a closely related topic (where two or more is fair)

You can have more than these amounts if:

• The work is out of copyright
• The work is out of print
• The work is part of a collection of works and is not separately available for purchase
• You are unable to purchase an ordinary first hand copy at the recommended retail price within the time frame you need it in
• You answers to the five factors of fairness (below) are ‘more fair’

Note: There are no limitations for artistic works or cinematographic films. For those items, take into account the five factors of fairness (below) to determine if use is fair.

What are the five factors of fairness?

The five factors of fairness are used to determine if use can be considered 'fair and reasonable'.

1. Why are you copying and how are you using the work?
   It’s more fair to use something in your assessment because it’s necessary for your audience to understand what you’re talking about as opposed to just using something to make your work look better. It’s also less fair to copy something and use it in a way that allows you to make money or profit.
2. How much time and effort went into creating the work?
   It’s more fair to use something that took less time and effort to create, than something that took more time and effort to create.
3. Can you buy a copy at the recommended retail price within a reasonable time frame?It’s more fair to buy a copy if it’s reasonable to do so given your time frame and compensate the copyright owner by purchasing it.
4. How much are you using and how important is that piece to the overall work?
   It’s more fair to use a small part of something that is not particularly key, distinct and important to the overall work, than something that is a big piece, is important, key or distinct to the overall work.
5. What effect does your copying have on the market for or value of the work?
   It’s more fair to make the copy if it doesn’t de-value the work in the regular marketplace. If you’re only copying a portion of the work and submitting for assessment, then your copying isn’t altering the market or value of the work. If you were to put a section of the work on a public access website and that might deter people from purchasing a copy of that work, then your copying is having an effect on the market or value of the work.

It is enough if, more often than not, you answered that your use is fair. If you couldn't confidently argue your use is fair in a court of law, assume that it is not fair.

For further information, read the Australian Copyright Council's fair dealing information sheet.

Public Domain

Public domain means that the rights in that material have been given to the public, because either:

• The copyright in that material has expired, or
• The creator has waived their rights over the work.

You can use public domain work without needing permission.

In Australia, a work will generally enter the public domain 70 years after the death of the creator (if the work was made public in their lifetime). This can differ in other countries, and also within Australia due to changes in law.

Zombie Copyright

In many countries, an organisation or institution can claim copyright in a digitised version of an out of copyright image.

This can be an important revenue stream for museums, archives and other institutions.

They can claim copyright in a digitised image which required human effort and creative thought, such as:

• the specific set up of lighting when the item is photographed
• particular framing that was used
• touching up an old photo or painting digitally
• adjusting the brightness of the colours
• other similar efforts to make the digital copy.

You need to check if the source of the digital image claims copyright in it. This information can usually be found in the website's copyright or terms of conditions statement, or near the work. The terms and conditions may allow particular use without needing to seek permission.

Note: USA law states that "faithful reproductions" of out of copyright works are also out of copyright. Always check if the source website claims copyright in it or not.

Personal provisions

The Copyright Act makes limited allowances for copying material that you own for your personal use.

Space and format shifting (for music, films, photos, books, magazines and newspapers)

The Copyright Act allows you to make one copy of many materials you own for 'private and domestic' use. This will usually cover:

What you can do

• Convert books, magazines, newspaper articles and photographs from one format to another.
• You can make one digital copy of a print item, or print one copy of a digital item
• Convert a CD to digital music files and transferring digital music files to a device you own capable of playback, like your computer, tablet, phone or digital music player
• Convert an analogue videotape, such as VHS, to a digital format

How you must handle the original material and the copy

• You need to keep the original - if you deliberately lose, trade, sell or dispose of the original, you need to delete the copy that you’ve made
• The copy must be made from a legal copy that you own - it cannot be borrowed or pirated
• You need to own the device that you’re copying the content to

What you can't do

• You cannot share or host your recording online
• You cannot store your personal copy on someone else's device or cloud storage
• You can’t broadcast, perform or play it in public (like at a public event)
• You can’t sell, trade or lend the copy that you’ve made, unless your use falls under a Fair Dealing provision

Note: This exception does not cover computer games or videos in formats other than videotape.

Time shifting (recording TV and radio programs)

What you can do

• You can record TV and radio broadcasts to personally access or listen to them at a more convenient time. This provision does not allow you to create a ‘library’ of material that you can access or listen to repeatedly.
• The recording can be made in any format (video, DVD, digital). You can only make recordings from pay TV services (like Foxtel) if you have a current, paid subscription to that service.

What you can't do

• The recording cannot be shared or lent, however if the recording is from TV, other members of your household may also access the recording
• You cannot share or host your recording online
• You can’t broadcast, perform or play it in public (like at a public event)
• You can’t sell, trade or lend the copy that you’ve made, unless your use falls under a Fair Dealing provision or it is intended to be used for teaching purposes under Section 113P.