Copying by Staff for Research, Study, Criticism & Review Purposes

Literary, dramatic, musical or artistic works

Under the "fair dealing" provisions of the Copyright Act, an individual can make a copy of a literary, dramatic, musical or artistic work without infringing copyright provided it is for the purposes of research or study (section 40) or criticism or review (section 41).

Note: "musical work" here refers to sheet music only - sound recordings are covered by the provisions relating to audio- visual works. "Artistic work" here includes paintings, sculpture, cartoons, photographs, illustrations, etc. It does NOT however include moving images or animations - these are normally considered as films and are also covered by the provisions relating to audio-visual works.

"Fair dealing for research or study"

In considering if a dealing constitutes a 'fair dealing for research or study', a court would consider the following:

the purpose and character of the dealing;
the nature of the work or audio-visual item;
the possibility of obtaining the work/audio-visual item within a reasonable time at an ordinary commercial price;
the effect of the dealing upon the potential market for, or value of, the work/audio-visual item; and
in a case where only a part of the work/audio-visual item is copied or communicated - the amount and substantiality of the part copied or communicated in relation to the whole item.

The AVCC has advised that copying which is part of the research function, such as preparing an article or book chapter, or part of an academic's general reading to maintain current awareness in his or her field, is very possibly made "for the purpose of research or study". Some teaching functions, such as preparation of new courses, or copying of an article or other material for an individual student or small group of students to study, could also fall within the test. A communication between two academics for the purpose of joint research will most likely also satisfy the test but few other instances of communication will.

Multiple copying for distribution to students or other use in teaching would NOT normally be considered to be fair dealing for the purpose of research or study. For information on copying for teaching purposes, see Copying by staff for teaching purposes.

You cannot use copies made under the fair dealing provisions for any other purpose. If you do, then the copies are infringing copies and penalties may occur.

"Fair dealing for criticism or review"

The criticism and review provisions of the Copyright Act provide that a "fair dealing" with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not infringe copyright in the work if it is for the purpose of criticism or review, whether of that work or another work, provided there is sufficient acknowledgment of the work copied.

Any acknowledgment should identify the author (unless the author is anonymous or has agreed or directed that they not be named) and identify the work from which the copies are taken by its title or other description.

Unfortunately the criticism and review provisions of the Copyright Act contain no guidance as to what factors should be considered in determining if a dealing is 'fair'. However an example given by the AVCC of how this provision might be relied on by a university lecturer is where a work is copied for inclusion in a conference paper for the purpose of commenting critically on the material. Without the protection of the fair dealing provision this copying might - assuming a "substantial amount" was used - amount to an infringement of copyright.

In order to obtain the protection of this section, the purpose of the dealing must be criticism or review. If the court considers that the real purpose of the dealing was to capitalise on publishing another creator's material, the protection will be lost.

This category of fair dealing would normally only apply to copying you do for yourself or for other staff. It may also apply to communications between academics for the purpose of academic criticism and discussion. It will very rarely apply to multiple copying for distribution to students. For information on copying for teaching purposes, see Copying by staff for teaching purposes.

Fair dealing copying limits

The amount you may copy under the fair dealing provisions should not exceed the following limits:

For periodicals/journals/newspapers: one article in an issue (you can copy more than one if the articles relate to the same subject).
For books: 10% of the pages or one chapter (whichever is greater)
For literary or dramatic work in digital format, not covered by a licence or other "contractual agreement", you can copy one chapter (if the work is in chapters) or 10% of the number of words (if it is not divided into chapters). For digital works which are covered by licence or contractual agreements - you must abide by the terms of the licence/contractual agreement.
An artistic work can be copied in its entirety - there is no need to limit yourself to 10% of it.

Audio-visual items, e.g sound-recordings, films, videos

Sections 103A and 103C of the Copyright Act respectively cover "fair dealing" of audio-visual items for the purposes of research or study or criticism or review. Audio-visual items here includes sound-recordings, films and videos.

"Fair dealing for research or study"

In determining whether a dealing with an audio-visual item constitutes a fair dealing for the purpose of research or study a court is directed to consider:

the purpose and character of the dealing;
the nature of the audio-visual item;
the possibility of obtaining the audio-visual item within a reasonable time at an ordinary commercial price;
the effect of the dealing upon the potential market for, or value of, the audio-visual item; and
in a case where part only of the audio-visual item is copied or communicated - the amount and substantiality of the part copied or communicated in relation to the whole item.

Multiple copying for distribution to students or other use in teaching would NOT normally be considered to be fair dealing for the purpose of research or study. For information on copying for teaching purposes, see Copying by staff for teaching purposes.

"Fair dealing for criticism or review"

Unfortunately the criticism and review provisions of the Copyright Act contain no guidance as to what factors should be considered in determining if a dealing with an audio-visual item is 'fair'. An example given by the AVCC of how this provision might be relied on by a university lecturer is where an audio-visual item such as a film or sound recording is copied to be played at an academic conference for the purpose of commenting critically on the material. Without the protection of the fair dealing provision, both the copying and the 'causing to be seen or heard in public' might - assuming a 'substantial amount' was used - amount to an infringement of copyright. If instead of being shown at a conference the copy was communicated by up-loading it onto the academic's web-page - still for the purpose of commenting critically on the material - this might also amount to a fair dealing.

In order to obtain the protection of this section of the Copyright Act, the purpose of the dealing must be criticism and review. If the court considers that the real purpose of the dealing was to capitalise on publishing another creator's material, or to make the material available to students for the educational purposes of the College, the protection will be lost. If in doubt, you must contact the Copyright Officer. For information on copying audio-visual material for teaching purposes, see Copying by staff for teaching purposes.

The criticism and review provisions stipulate that there must be sufficient acknowledgment of the audio-visual item. Any acknowledgment should identify the author (unless the author is anonymous or has agreed or directed that they not be named) and identify the audio-visual item which is the subject of the criticism or review by its title or other description.

Fair dealing copying limits

The courts have given very little guidance, so far, on the amount of an audio-visual item that can be copied under the fair dealing provisions without infringing copyright. It will be a question to be determined in each particular case just how much it is fair to take. You should seek advice from the Copyright Officer before assuming you can rely on the fair dealing provisions to copy more than a small amount of an audio-visual item.

Radio and television broadcasts

It is best to rely on the College’s Part VA statutory licence if you need to use material from a broadcast (radio, television, cable or satellite) for research or study, criticism or review purposes.

Library e-journals and databases

The Library subscribes to various e-journals and databases. Almost all of these are covered by some kind of contractual agreement.

All permit copying of limited amounts of material for non-commercial, personal use but other terms and conditions vary.

Any staff member wishing to copy or communicate material from Library e-journals or databases for purposes other than non-commercial personal use must contact the Copyright Officer.

Material on the Internet

Material on the Internet is covered by copyright: it is NOT "copyright free".

Some Internet sites stipulate conditions on copying their content. These are normally located on the site's homepage under headings such as "Copyright", "Terms of Use", or "About [this site]". If the site contains conditions, especially if it is password-protected or covered by a contractual agreement, you must abide by the terms and conditions stated or seek an exemption from them.

You should normally only make a single copy, for your own individual use. You should only make multiple copies if your purpose is “criticism or review”.

Copying with permission of the copyright owner

If you are not sure whether the copying you wish to do is "fair dealing" or if you wish to copy more than you are allowed under the fair dealing provisions or a licence/contractual agreement covering a copyright item, you should approach the copyright owner for permission to copy. Many copyright owners are happy to provide permission to use their material for non-commercial, educational purposes.

Ensure that you get permission in writing and keep a record of it in case you are challenged at a later date. Make it clear in your letter/email how you intend to use the material and who will have access to it.

Abide by any conditions imposed by the copyright owner.

Make it clear on any copies you make that the material has been copied with the permission of the copyright owner.

Do not assume however that the author of a published work is the copyright owner; sometimes authors assign copyright ownership to a publisher. The Library may be able to help you to trace the copyright owner.