Last Updated: 04 Dec, 2023     Views: 8

What is fair?

Fair dealing exceptions, other exceptions and educational statutory licences allow for a some copying of a work within copyright, so long as the amount copied is not a "substantial" amount.

There is no clearly defined amount of a work that is deemed to be a "substantial amount". Rather, what is regarded as being "substantial" depends on the work itself.

For example, a guitar riff from a song might be considered a "substantial amount" if the riff is particularly original and significant to that song.

It is the significance of the part of the work that determines if it is substantial, not the amount per se.

The amount used must not be prejudicial against the copyright holder in any way. That is, using the work should not obstruct or subvert the copyright holder's ability to benefit from their work.

Ask: Is the use of this work fair to the author as well as fair to the user?

The 10% rule

For the Fair Dealing exception for the purpose of research or study (or for use under the education statutory licence), for textual works such as books, theses, plays, music scores and the like, a "fair amount" is usually considered to be

  • 10% of the pages (or 10% of the words for an electronic work that does not have pages), or
  • one chapter (whichever is greater)

You may be able to copy more of the work if it is not commercially available (e.g., unpublished or out of print) and a legal copy cannot be obtained for a reasonable price at a reasonable time.

You can copy (for personal education or study, or to make available to your students) an entire journal article, but should not copy more than one article from the same issue of the journal unless it is on the same topic (e.g., a particular intervention for diabetes).

Beyond this use, the amount you can copy depends on the nature of the work, the nature of your use of the work, the ability to get a commercially available copy at an "ordinary commercial price", and the impact your use will have on the future value of the original work.

A note on images

An entire image can be used under the Research and Study exception or the education statutory licence, as long as it is being used strictly for that purpose.

For example, an image that explains or illustrates a point you need to make in your assignment falls under Fair Dealing as long as it is only available to the people who need to read that assignment (such as the subject's lecturers). A purely decorative image used to add visual interest to your presentation does not fall under the "research or study" exception.

Similarly, a lecturer can include an entire image in a lecture or as part of the week's study materials in LearnJCU, so long as the image is actually being used for educational purposes and is only accessible by students enrolled in the subject.

In all cases, the images must be properly attributed.

A good rule of thumb

To help ensure you have not used a substantial amount, consider these points:

  • Take only what you need (e.g. if you only need a couple of pages of a book, only take those pages).
  • Ensure your use fits within the exception or statutory licence (e.g.: if you are using it under the Research or Study exception, it is only for your personal study; if it is under the statutory licence, it is actually needed by your students and only available to students studying the course).
  • Do not make material you use under a Research or Study exception, or the education statutory licence, publicly available.
  • Ensure the amount you have taken is "fair to the author" in regards to the entire work, and does not lessen the value of the original work in any way.
  • Use Creative Commons (or similar) licensed material wherever possible, as works with CC licences applied can be used in their entirety, and you do not need to worry about a "substantial" amount.

Always acknowledge your sources

At all times, when using third-party material, you must acknowledge the source of the work.

For assignments and other educational purposes, it is advisable to cite the work according to the preferred style. Otherwise, unless you have express permission from the copyright holder (and your lecturer, if you are a student) to use the work without attribution, you should provide the name of the creator and a link back to the source, at bare minimum - a full TASL-style attribution is preferred (Title, Author, Source, Licence).