The Copyright Act 1968 (Cth) primarily governs copyright law in Australia and aligns with international Intellectual Property (IP) standards. The legislation grants creators exclusive rights to control the use of their original works and incorporates mechanisms that permit certain public uses. These balancing provisions—such as the fair dealing exceptions—ensure that copyright law does not stifle research, critique, or free expression. This article outlines how to identify copyrighted material and explains how individuals may lawfully use it under the fair dealing framework.
Identifying Copyrighted Material under Copyright Law in Australia
When undertaking a commercial, academic or creative project, it is common to incorporate pre-existing content—such as a photo for a campaign, a clip in a review video, or an excerpt in an article. Before doing so, determine whether the material is protected by copyright. Some works display a clear copyright notice, but in many cases, the protection is not obvious. Start by assessing whether the material qualifies as a “work” under the Copyright Act and whether it meets the threshold of originality.
For copyright to subsist, the work must exist in a material form, meaning the creator must record it in a tangible medium that others can perceive, reproduce, or communicate. Part III of the Act outlines the types of works protected, which include:
- Literary, dramatic, musical, or artistic works
- Sound recordings (s 22)
- Cinematograph films (s 22)
- Broadcasts (s 22)
- Published editions (s 22)
Note: The law may protect a narrative, but it does not automatically protect fictional characters unless they are sufficiently developed and distinctive in their expression.
Definitions of Copyrightable Works in Copyright Law in Australia – Sections 10 and 189
The Copyright Act provides broad definitions of works that may attract copyright protection:
- Literary works include material expressed in words, numbers, or symbols—such as books, articles, emails, databases, and computer code.
- Dramatic works include plays, screenplays, and choreographed performances.
- Musical works refer to musical compositions, whether or not they include lyrics.
- Artistic works encompass paintings, sculptures, drawings, engravings, photographs, buildings, and other forms of artistic craftsmanship (s 189).
The Originality Requirement in Copyright Law in Australia – Section 32
Under section 32, copyright only subsists in original works. However, “originality” under Australian law does not require novelty. Instead, it requires that the work originates from the author and is the result of independent intellectual effort. As established in Ice TV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458, the courts assess whether the author has exerted skill and labour in producing the material. Simple compilations, mechanical processes, or material copied from another source with minimal change are unlikely to meet the threshold of originality.
Ownership and Exclusive Rights under Copyright Law in Australia
In general, the creator of the work is the initial copyright owner. However, this default position can vary depending on the circumstances of creation and any agreements in place.
For example:
- A journalist employed by a media outlet may not own the copyright in their articles, as their rights are likely assigned to the publisher by contract.
- Where the work is created by an employee in the course of employment, the employer is generally the copyright owner under section 35(6).
Copyright owners are granted a bundle of exclusive rights under the Copyright Act, including:
- The right to reproduce the work
- The right to publish or perform the work
- The right to communicate the work to the public
- The right to adapt the work into other formats or mediums
The copyright owner retains and enforces these rights unless they formally assign or license them to another party in writing or by operation of law.
Using Copyrighted Material: The Fair Dealing Exceptions
The Copyright Act 1968 allows for limited unauthorised use of copyright-protected content through the doctrine of fair dealing, set out in sections 40 to 42 and 41A. To rely on this defence, the use must be for one of the recognised statutory purposes and must be fair in the circumstances. The recognised purposes include:
- Research or Study
- Criticism or Review
- Parody or Satire
- Reporting the News
In TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (2001) 108 FCR 235 (“The Panel case”), the Full Federal Court outlined the key principles of fair dealing. Justice Conti held that the use must be genuine and in good faith, and that criticism can be robust but must relate to the original work. The Court warned that the presence of a hidden commercial motive or entertainment value—without a genuine critical purpose—may disqualify the claim of fair dealing.
1. Research or Study – Section 40
Section 40 permits the use of copyrighted material for the purpose of research or study, provided the use is reasonable. This exception is widely applied in academic and educational settings, and can also apply to content creators, researchers, and analysts.
The Copyright Regulations 2017 (Cth) offer guidance on what is considered “reasonable use,” suggesting that copying up to 10% of a literary work or one chapter of a book may be considered fair. However, the fairness assessment also considers factors such as the purpose of the use, the nature of the work, the amount used, and the effect on the market for the original.
2. Criticism and Review – Section 41
Section 41 states that a person does not infringe copyright if they deal fairly with a work for the purpose of criticism or review, provided they use it genuinely, limit the use to what is reasonably necessary, and include sufficient acknowledgment of the source. This exception permits uses such as quoting lines from a book in a review, or using a short clip in a video commentary.
In TCN Channel Nine Pty Ltd v Network Ten Pty Ltd,the Court interpreted the terms “criticism” and “review” liberally. However, it found that Network Ten did not use Nine’s broadcast content in The Panel for genuine critique. Rather, it was for entertainment and attracted a commercial audience, undermining the fairness element. The case illustrates the importance of purpose and proportionality in invoking the defence.
3. Parody or Satire – Section 41A
Section 41A provides a separate exception for fair dealing for the purpose of parody or satire. Unlike criticism or review, there is no requirement to acknowledge the original author. However, the parody must be transformative, original, and involve sufficient mental labour.
In Pokémon Company International, Inc v Redbubble Ltd [2017] FCA 1541, the Federal Court rejected the fair dealing defence where the defendant reproduced Pokémon imagery on commercial merchandise. The Court held that the use was not a parody or satire but a commercial exploitation of the Pokémon brand. This decision underscores that parody must engage with or critique the original work—not merely mimic it for humour or attention.
Examples of permissible parody may include memes, comedic reinterpretations, or critical spoofs that offer social commentary or artistic transformation.
4. Reporting the News – Section 42
Section 42 permits the use of copyright-protected material for reporting the news, whether through print, broadcast, or digital media. This includes factual reporting and editorial comment, but the material must relate directly to the subject of the news, and sufficient acknowledgment must be provided.
For example, a television news program may broadcast a snippet of music if the music itself is the subject of a report, such as coverage of a copyright dispute or the release of a new album. The user must genuinely use the material to report the news—not merely for background or aesthetic purposes.
In De Garis v Neville Jeffress Pidler Pty Ltd (1990) 37 FCR 99, the Court held that a media monitoring service could not rely on the news reporting defence when it reproduced news content for commercial clients. The Court found that the company did not use the material to report the news itself but provided it as a service for others, which disqualified the use from the exception.
Conclusion
The Copyright Act 1968 (Cth) is designed to strike a balance between protecting creators’ rights and allowing legitimate uses of copyrighted material for public benefit. The fair dealing exceptions provide important protections for freedom of expression, education, critique, and news reporting. However, these exceptions are narrow and subject to strict judicial interpretation. The key factors are whether the purpose is genuine, whether the use is proportional and fair, and whether proper acknowledgment is provided where required.
If you are uncertain whether your use qualifies under a fair dealing exception—or if your use may infringe on someone else’s copyright—you should obtain legal advice. Misuse of copyrighted content, even unintentionally, can expose individuals and organisations to significant legal and financial risk.
Jake McKinley notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Jake McKinley are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.
