How do I know if my use is ‘fair’ or not?

‘Fairness’ will be depend on the circumstances and context of the use - there is no set rule for what makes a use fair. However, you should consider your use holistically, and particularly consider:

• How much of the existing work are you copying?
• How is your use likely to impact the market for the original work? (Are consumers likely to purchase your product instead of the original?)
• Do you have an option to obtain permission to use the work within a reasonable time and cost?

These questions will not determine fairness, but they can help you reach a decision by weighing up some relevant considerations.

A use will not be unfair simply because you might have been able to get a licence (permission), but a court may consider licensing options when considering all of the circumstances. For example, a copyright owner is unlikely to give permission for a parody or satire that makes fun of them or their work, which is why we have a fair dealing exception for this purpose.

How much copying is “too much” for fair dealing?

There is no hard and fast rule for how much copying or use is too much under the fair dealing exceptions.

How much of the original work you use may be relevant to fairness, but this depends of the context and the type of work you are using. It is far more reasonable to use the whole of an artistic work, like a picture, for example, than it is to use the whole of a literary work, like a book.

Does “fair use” and “fair dealing” mean the same thing?

No, they are NOT the same. “Fair use” is a concept under the laws of the United States whereas the Australian law only recognises “fair dealing”. These are different concepts, with different scope and application.

As both provide exceptions to copyright use, it's easy to confuse the two. You may come across interchangeable use of “fair dealing” and “fair use” in some places. However, “fair use” provisions are broader in scope and DO NOT apply in Australia.

The difference is this: in the US, the courts only need to consider whether the use is fair. By contrast, in Australia, the courts need to consider whether the use is fair AND ensure that the use falls within one of the specified fair dealing purposes.

The Kookaburra Case

Take for example the famous 2011 Australian case, EMI Songs v Larrikin Music Publishing (commonly known as the ‘Kookaburra Case’).

In this case, the Australian band ‘Men at Work’ used two bars from the 1934 folk song, Kookaburra Sits in the Old Gum Tree, as a flute riff in their famous song, Down Under.

The new song was quite different from the original - Down Under combines elements of rock, ska and reggae, whereas Kookaburra Sits in the Old Gum Tree is a folk song originally written for the Girl Guides. The musical contexts differ, and no one would ever confuse the two songs as being the same thing. Importantly, a person would not buy a copy of Down Under as a replacement or substitute for Kookaburra Sits in the Old Gum tree.

There was clear copying - Men at Work used two bars of the four bar folk song, which is substantial copying both in terms of quality and quantity. In the US, however, this copying might have been excused as ‘fair use’. Because of the different musical and commercial contexts of the two songs, and because Down Under does not harm the market for Kookaburra Sits in the Old Gum Tree, an American court might say that this is a new and creative use of an existing work, which should be allowed.

In Australia, though, it is not enough that the use is fair. The use would also have to fall within one of the fair dealing purposes, and none of the fair dealing purposes fit Men at Work’s use. There is no fair dealing for homage or creative reuse. Therefore, in Australia, this use was an infringement of copyright, and Men at Work lost their case in court.

Therefore, it's always best to look for ‘fair dealing’ provisions if you’re in Australia or planning to use Australian copyrighted content.

Watch the news report covering the case from Sydney 3 News Men at Work accused of plagiarism over 'Down Under' 

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