Importance

Fair dealing is one of the most important permitted uses for tertiary students and researchers. When fair dealing applies there is no need to get permission from owners to use copyright works. In New Zealand, fair dealing allows any person to deal with any type of copyright material for the purposes of their own research or private study, criticism and review or news reporting, where it is fair to do so.

Guidelines

There are no specific guidelines on how much copying is allowed under fair dealing. There is a common misconception that any copying up to 10% of a work is fair dealing, however this is incorrect. The Copyright Act does not indicate a quantity of copyright material that can be copied. Content users need to ensure their dealing fits into one of the three specific purposes listed in the Act and that the dealing is fair in the circumstances.

Purposes of the dealing

Criticism and review. Fair dealing for the purpose of criticism or review allows a person to copy copyright material when they are critiquing or reviewing that material, for example in an academic paper, in a book or film review, or when making a documentary film. Some courts have also accepted that protection can extend to criticism of the ideas to be found in a work and its social and moral implications. A fair dealing for criticism or review must be accompanied by a “sufficient acknowledgement”. This generally means that the author (not the copyright owner) and the title of the work are acknowledged.

News reporting. A fair dealing with a work for the purpose of reporting current events may be relevant when writing a submission for a newspaper article. Fair dealing for news reporting purposes also requires “sufficient acknowledgement” unless the reporting is by means of a sound recording, film or communication work. The news reporting exception does not apply to photographs, so permission is always required to reproduce or communicate photographs when reporting current events.

Research or private study. Fair dealing for research or private study is a key provision for students and researchers. The terms “research” and “private study” are understood by their ordinary meaning. “Research” has been described as “a diligent and systematic inquiry or investigation into a subject in order to discover facts or principles”. In New Zealand, research may be commercially or privately motivated whereas private study is personal to the student. Private study excludes class or group study. In either case, only an individual doing the copying can rely on the fair dealing defence. The exception does not cover dealings for someone else’s research or study, for example, a teacher copying for research purposes of students. (There are special exceptions under the Copyright Act for librarians of prescribed libraries to copy material for someone else’s research or private study, but only after specific request.) Only one copy can be made of material at any one time, so copying for group research or study is not permitted. The educational copying provisions and educational licence schemes facilitate copying for students in the educational context.

Unlike fair dealing for criticism, review and news reporting purposes, there is no express statutory requirement for making sufficient acknowledgement when a fair dealing use for research of private study is made. However, it is standard practice in the educational context that use of third party material be accompanied by a comprehensive acknowledgement of origin, to the extent possible.

Uses subsequent to research or study

It is important to note that the fair dealing exception for research/private study applies only to the use associated with research or study, but not to any subsequent uses, such as publication of that research. Fair dealing for research or private study permits only one copy to be made of material at any one time. Publication would involve making multiple copies, which is not allowed under the provision.

Requirement of fairness

For fair dealing to apply, it is not enough that a use fit within one of the specified purposes. The dealing must also be “fair” in the circumstances. There are several factors listed in the Copyright Act that are to be taken into account in determining whether copying is fair (although it is likely a court would also refer to these factors for other dealings). The fairness factors are summarised below:

1. the purpose of the copying (for example, copying for commercial purposes is less fair than copying for personal use);
2. the nature of the work copied (the degree of skill, judgement or labour that went into creating the work may be relevant);
3. whether the work could have been obtained within a reasonable time at an ordinary commercial price (it may be fair to copy all or part of a work that is not available commercially, but unfair to copy where you can buy it);
4. the effect of the copying on the potential market for or value of the work (for example, where a work is available for sale or licence); and
5. the amount and substantiality of the part copied (for example, it is less fair to copy a large or important part of a work than to copy a small or unimportant part. It may be fair to copy a whole work, such a journal article or a poem. It would not be fair to copy a whole book (unless it is not available for purchase).