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Copyright @ CDU: Fair Dealing and Flexible Dealing

A general guide to assist CDU staff and students to observe Australian copyright law

 

Flexible Dealing and Fair Dealing

Flexible Dealing

Flexible Dealing Provisions (Section 200AB)

Section 200AB was introduced into Australian law via an amendment to the Copyright Act in 2006. The aim was to provide a "flexible exception" to enable copyright material to be used for certain socially beneficial purposes, but still allow Australia to be compliant to the international copyright treaties. The section has become known as the Flexible Dealing Provisions (not to be confused with the "Fair Dealing Provisions" aka the "10% rule").

For more information on Flexible Dealing see the Flexible Dealing Handbook.

 

Flexible Dealing flowchart

Steps to take when deciding to use the flexible dealing provision by the Australian Libraries Copyright Committee and the Australian Digital Alliance is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Australia License.

Fair Dealing

Fair Dealing

The Australian Copyright Act 1968 provides some exceptions to the rights of copyright owners allowing students to use material without permission from copyright owners as long as they comply with certain conditions. It contains what are known as fair dealing provisions which allows individuals to reproduce literary, dramatic, musical and artistic works without obtaining permission from the copyright owner, providing it is done for one of a limited number of purposes and meets the requirements of 'fair dealing' as outlined in the legislation.

It allows you to copy limited amounts of literary, dramatic, musical or artistic works as part of their study as long as they comply with the following conditions:

  • The purpose of your proposed use must be research or study. This would include work you are required to undertake as part of the course you are enrolled in at CDU.
  • The proposed use must be 'fair'.

This is determined by taking into account:

  • The purpose and character of the dealing
  • The nature of the work or adaptation
  • The possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price
  • The effect of the dealing upon the potential market for, or value of, the work or adaptation
  • The amount and substantiality of the part copied taken in relation to the whole work or adaptation

In most cases you can only copy a reasonable portion of a work. A reasonable portion is: 

  • 10% or one chapter of a book
  • One article from any one issue of a journal - 2 or more articles from any one issue of a journal if the articles are relevant to the same unit of study
  • For a digital or electronic item that is not divided into chapters, then 10% of the number of words can be copied

 

Fair Dealing flowchart

It can often be tricky to determine whether something you want to do falls within fair dealing. This quick guide sets out the steps you should take and the factors you should consider. Ultimately, it will depend on your particular circumstances and you have to make a judgment call as to whether your use can be classified as “fair”. If you have any doubt, you should ask for permission. If the work is a library-licenced electronic resource, the permissibility of your use is determined by the terms of the licence.

Step 1: Check whether your purpose is a permitted purpose

Are you using the work for the purpose of:

  1. Research
  2. Private study
  3. Criticism
  4. Review
  5. News reporting
  6. Education
  7. Satire
  8. Parody

Yes - Continue to step 2

No - Check whether use is covered under:

  1. Any other Copyright Act exception
  2. Library licences for electronic journals and databases (Note: some licences may prohibit some uses even if the purpose is one of the above.)
  3. Cinematograph film licences
  4. Any other agreement

Step 2: Check whether your use if "fair"

Is the nature of the dealing fair?

Nature of the Dealing

Less fair

More fair

Purpose

Commercial

Charitable/Educational

Character of the dealing

Multiple copies;

Widely distributed/repetitive

Single copy;

Limited distribution/one-off

Importance/amount of work copied

Entire Work/Significant excerpt

Limited/trivial amount

Effect of dealing on the original work

Competing with original work
 

No detriment to original work
 

Nature of the work

Confidential

Unpublished/in public interest

Available alternatives

Non-copyright works available;
 

Not necessary for purpose
 

No alternative works;
 

Necessary to achieve
purpose

 

Fair dealing flowchart by the University of Waterloo Copyright Advisory Committee is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.

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