Fair Dealing – Getting Paid vs. Getting Played


The growing ease with which anything can copied, shared (cross-platform), and monetised (subscriptions, affiliate advertising etc etc) is providing ever increasing opportunity for conflict between content creators and content distributors. Particularly as the lines between those roles have been greatly blurred by this age of rapid publishing facilitated by the Internet.

With budgets under pressure, the temptation is now greater than ever for people to try and assert the fair dealing (sometimes called ‘fair use’) exemptions to copyright infringement in order to avoid paying content creators. Through ignorance of the law, imbalance in bargaining power, and the financial and reputational cost of legal action, smaller operators often feel forced to accept this practice as the cost of doing business.

In the news business a typical scenario will be:

  • Content creator shoots footage
  • News service purchases license to use that footage and publishes it in the form of a TV news segment, social media posts, and online articles
  • Competitor news service copies the published footage and uses it in it’s own publications
  • Content creator sends invoice to the competitor news service for the use of its footage
  • Competitor news service claims that it has no obligation to pay the invoice due to the ‘fair dealing’ or ‘fair use’ exemption (note ‘fair use’ is the American term)

The fair dealing exemptions are contained in sections 40 – 42 of the Copyright Act 1968, and as with most legislation they are likely to be misunderstood if read without the benefit of legal training (most legislation requires an ability to ‘read between the lines’). Adding to the interpretational issue, their application is not black & white but instead a question of ‘impression’ in the circumstances.

At the outset, a good rule of thumb is to consider whether the copying of some part of the content is a referencing or a repackaging of it. Has the copy been incorporated into the new publication as a communication short cut (i.e. a means to quickly identify the topic being discussed), or has it been incorporated because the presence of it adds value in itself to the new publication? The former is more likely to be fair dealing, and the latter more likely to be copyright infringement (particularly if there is money being made), but every case falls on its own facts.

Determining these issues is two-fold. First, for there to be an infringement of the copyright in some content there has to be a copying of a ‘substantial part’ of it. This is a question of quality rather than merely the quantity of the copying. Some people might try to tell you that copying a certain amount, say 20 seconds of your video, is ‘fair use’, but that is about as valid as the ‘5 second rule’. In short, if you have copied some of the most eye-catching parts of the content then there has probably been infringement of copyright (unless an exemption applies) – So a 20 second highlight reel cut together from a content provider’s footage of a 2 hour sporting event is unlikely not to be infringement, as that highlight reel appropriates a substantial portion of the benefit that footage.

To borrow the wording of the Act, copying another party’s content is ‘dealing’ with it. So the question of whether the exemption applies will fall on whether you were dealing with it for one of the purposes stated in ss40-42:

  • Research or study
  • Criticism or review
  • Parody or satire
  • Reporting news

and whether that ‘dealing’ was ‘fair’ or ‘unfair’. Whether the dealing is unfair will depend on the particular facts of the case, but some important considerations will be:

  • Whether the use of the copy is one for which the rights holder would reasonably expect to be paid;
  • Whether a direct monetary benefit is being derived from the use of the copy (e.g. monetising the viewing of the new publication that contains the copy by use of advertising, subscription fees, or selling copies);
  • Whether allowing others in a similar position to the defendant to behave in this manner would significantly devalue the copyright in the work (considering the market that the rights holder had in mind when creating the content);
  • Whether the copy of the content, or part of it, included in the new publication is one of the key attractions bringing people to view the new publication.

Much of this revolves around the policy reason for creating ‘copyright’. That is, to encourage people to make their work available to the public. If allowing, as a general rule, the kind of copying that has occurred in the circumstances at hand would do significant damage to this aim then it is less likely the copying will fall within the ‘fair dealing’ exemption. The flip side is that Parliament seeks to avoid unduly impairing the ability of the public to communicate about events, issues and subjects that may necessitate reference to copyrights works, and this is where the fair dealing defence has a role to play.

Unfortunately, this article can only deal in general terms. Every case has its own peculiarities- see our media page for what Australaw can do for you. Australaw can help you with a range of legal issues- contact us for more information.

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