The Australian copyright framework, under the Copyright Act 1968 (Cth) is intended to facilitate access to content, while enabling rightsholders to fairly manage how their content is used. Copyright can be a complex and nuanced area for in-house counsel – ACC members are encouraged to use the following resources to gain clarity on best practices when it comes to copyright compliance.
Copyright Law in context
Under s36 of the Copyright Act 1968 (Cth), copyright infringement occurs where someone who is not the rightsholder, exercises any of the exclusive rights (contained in s31) of the copyright holder without permission or a licence. Organisations may be held vicariously liable for their employees’ or contractors’ copyright infringement.
The only instance in which a permission (commonly referred to as a ‘licence’) is not required is where a fair dealing exception applies. Unlike the American concept of “fair use”, “fair dealing” exceptions in Australian copyright law allow the use of copyright material for a narrowly defined set of purposes:
- research or study
- criticism or review
- parody or satire
- reporting the news
- access by a person with a disability or an organisation assisting a person with a disability
- giving professional advice by a lawyer, patent attorney or trademarks attorney.
In considering whether the dealing with the work is fair, the courts will look at whether an objective person would consider:
- that the use of the work is genuinely for one of the fair dealing exceptions in the act, and
- the use of the work is fair in that context.
Fairness Considerations
Considerations would include whether there was a negative financial impact upon the rightsholder, including whether a copyright licence was easily available.
For organisations, this means regular day-to-day activities, such as the below, would usually require either a copyright licence or permission from the rightsholder:
- downloading as a PDF or digital file
- forwarding media clips received from a media monitoring organisation to an external party
- saving media and creative works received from an external agency or stakeholder
- saving copyright works on a server or hard drive
- posting an article on an intranet, secure extranet or public website
- providing a copy to a regulatory body or adviser
- copying and pasting an image, graph or table into a presentation or report
- copying and pasting text from a book or research paper into a report
- emailing an article to a colleague
- posting content to a social media channel
- scanning from a hard copy making a hardcopy of a work either by printing or photocopying
Copyright Governance:
There are a number of misconceptions about the legal use of copyright content in organisations, including the common misconception that purchasing a copy of a work or subscribing to a work entitles the purchaser to also copy and communicate that work. This is very rarely the case.
For further guidance, you can check your knowledge against five common copyright myths in this video prepared by Copyright Agency:
