Fair dealing is a dicey section (or precisely 3 sections – see below) of the Copyright Act 1968 (here on after referred to as ‘the Act’) in Australian Law. They are 3 sections of particular interest in the emerging media remix culture fostered by the Internet and as the speed of this culture takes off and the tools to partake in it become increasingly available at a consumer level the need to define the applications or intent or the Fair Dealings sections becomes more pressing for those relying on the protection of copyright laws and for those who’s artistic endeavours hinge upon exemption form it.

Cases in the judicial system like TCN Channel Nine v Network Ten (2001) are where this definition of the applications for the “fair dealings” clauses should take place. In this case Channel 9 sued Channel Ten Network over the use of excerpts from 20 of Nine’s programmes on Channel Ten’s ‘The Panel’ between August 1999 and June 2000.

The Courts had to determine the scope of the exclusive rights that the original broadcaster held but also the fundamental fairness of the dealing in regard to the defence of the re-broadcast. The defence held that all instances of re-broadcast were exempt from prosecution under section 41 and 42 of the Act, which basically say you can use copyright material for the purpose of critique or review, and for the purpose of reporting the news. Preliminary hearings found in favour of the Panel on all but 3 instances, Channel 9 appealed, and a Full Federal Court mostly upheld the initial ruling, however ruled in favour of Chanel 9 on 3 additional instances, and reversed one count of copyright infringement from the prior hearing… So why? What was the defining factor that made The Panel’s use of some material exempt and other use an infringement? Did this litigation actually help to set precedent and define what is fair dealing?

Unfortunately it did not, A Melbourne University Law Review on the case suggested that at the most general level, there were a couple of problems with The Panel Case. First, that neither Court clearly explained the principles governing the defences of fair dealing for the purposes of criticism or review, and of news reporting. The Review suggested that they didn’t define the appropriate measure by which the fairness of the dealing should be assessed; how decisive terms, such as ‘criticism’, ‘review’ and ‘reporting of news’, should be defined and applied; or how the extensive body of UK case law on fair dealing should be interpreted. Second, as a result, the judges applied the fair dealing defences in an ad hoc manner based on personal ‘impression’, without plainly or consistently describing the bases for their findings. Essentially, the judges’ rulings look more like personal whim than an attempt to clarify the law.

So when it comes to the application of the law, and trying to ascertain whether something you’re posting online could be defended under fair dealing there are always Black and White cases where these defences clearly would or would not apply, but there are also vast murky areas of grey through which you will swim.

COPYRIGHT ACT 1968 – SECT 41

Fair dealing for purpose of criticism or review

A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if it is for the purpose of criticism or review, whether of that work or of another work, and a sufficient acknowledgement of the work is made.

EXAMPLE: http://www.sbs.com.au/movies/movie/precious

WHERE IT DOES (in theory) APPLY: A blog reviewing a film, television show, book or product that uses an small adapted segment of footage from the film/show previously released as a trailer, or still images of the book or from the film, and provides clear acknowledgement of the copyright holder or original work and the footage does not constitute a substantial part of the original work.

WHERE IT MAY APPLY: Re-broadcasting a 3 minute television segment from ACA on another network or media channel for the purpose of criticising ACA’s conduct but you only loosely criticize or review  i.e. The Panel case

WHERE IT DOESN’T APPLY: Uploading the full footage of a film to YouTube with a comment “I watched this film and in review I thought it was awesome. 5 stars”

COPYRIGHT ACT 1968 – SECT 41A

Fair dealing for purpose of parody or satire

A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if it is for the purpose of parody or satire.

WHERE IT DOES APPLY: The terms ‘parody’ or ‘satire’ are undefined, and will be interpreted by the courts. Courts sometimes use dictionaries to assist in determining the ordinary meaning of words. They can also refer to the legislature’s intentions by referring to Parliamentary speeches and reports of inquiries. A court may also survey the historical origins and contemporary influence of parody and satire as genres well known in the arts.

In the Attorney-General’s second reading speech to Parliament he referred to the new exception as protecting free speech for cartoonists and comics. Therefore it is likely safe to say that a cartoonist who publishes a parody or satirical illustration based on an existing copyright image would likely be able to defend a copyright infringement based on fair dealing.

WHERE IT MAY
Reproducing humorous material, changing lyrics to songs or treating material in a humorous way is not necessarily a fair dealing for parody or satire, and therefore may require permission. So producing a YouTube video like the literal video clip for ‘Total Eclipse of the Heart’ or the infamous ‘Brenda Dickson – Welcome to my home’ parody videos by US Comedian Deven Green, may not be protected under fair dealing. Again it’s murky grey area, satirist Chris Taylor caused controversy when he parodied Tim Freedman, lead singer of the Whitlams, on ABC’s The Chaser’s War on Everything and rewrote lyrics to one of their songs, this never went to court and was settled privately so it is unclear whether this section of the Act would have held in defence of Taylor or not. The terms parody and satire certainly apply in these cases but the question would be in the fairness of the dealing.

EXAMPLE: http://www.funnyordie.com/videos/704b311c2f/welcome-to-my-home

EXAMPLE: https://www.youtube.com/watch?v=fsgWUq0fdKk

WHERE IT DOESN’T APPLY: Uploading the full footage of a video clip to YouTube without alteration but with a description offering a joke. As you can see above there grey area is much broader than the definite does not apply.

MORE READING ON SATIRE DEFENCE: http://www.artslaw.com.au/articles/entry/the-parody-and-satire-defence-what-do-we-make-of-it-so-far/

COPYRIGHT ACT 1968 – SECT 42

Fair dealing for purpose of reporting news

(1) A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if:

(a) It is for the purpose of, or is associated with, the reporting of news in a newspaper, magazine or similar periodical and a sufficient acknowledgement of the work is made; or

(b) It is for the purpose of, or is associated with, the reporting of news by means of a communication or in a cinematograph film.

(2) The playing of a musical work in the course of reporting news by means of a communication or in a cinematograph film is not a fair dealing with the work for the purposes of this section if the playing of the work does not form part of the news being reported.

WHERE IT DOES (in theory) APPLY: A TV news segment on entertainment that shows a small clip of a trailer of a new release film in relation to a story about the film’s opening. A magazine or newspaper article that shows images of an actor in costume from a film in relation to the death of that actor.

WHERE IT MAY APPLY: A video blog that is reporting on the same film opening as above and uses a segment of the films main theme song during part of the report but where the music was non-diegetic to the footage of the opening.

WHERE IT DOESN’T APPLY: Posting a full news report on your YouTube page, especially if you get enough clicks to earn income from advertising through YouTube. Yes this technically is a breach of copyright, posting a full news report produced and owned by another person or entity breaches their copyright, especially if you then profit from it, even if you do so with the intent of reporting the news.

EXAMPLE: https://www.youtube.com/watch?v=1KcYR3GfsGo (this would be an infringement)

EXAMPLE: http://www.abc.net.au/mediawatch/transcripts/s4026504.htm (this could also be exempt for review and criticism)
When determining the fairness of your use a courts decision should be informed by factors such as, but not limited to, the following:

• The amount of the copyright material used in comparison with the length of the copyright material;

• The extent of the use made of the copyright material by the defendant;

• The motives of the defendant;

• Whether the copyright material is confidential or has not been disclosed to the public;

• Whether the parties are in commercial competition with each other in respect of the use of the copyright material in question and the way in which it has been used;

• Whether the use of the material is reasonably appropriate, rather than necessary, for the permitted purpose; and

• The relevance of, and weight to be given to, any industry practices or agreements between commercial rivals as to what constitutes a ‘fair’ dealing.

In related news, on 13 February 2014, the Australian Law Reform Commission (ALRC) released its final report on Copyright in the Digital Economy. Most controversially, the report recommends the introduction of fair use in Australia as a defence to copyright infringement replacing the current fair dealing exceptions. – See more at: http://www.artslaw.com.au/search/1781077b9cbf56f4d244d2a3fe620993/#sthash.Cox6G5BQ.dpuf

A great article full of common questions and easy to understand answers that sheds light of defining the fair dealing sections of the Act can be found here: http://www.upstart.net.au/2012/12/10/explainer-copyright-and-fair-dealing/ (strongly recommend this read)