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Net Law Roundup #15

by Jeremy Malcolm, Internet lawyer

We hear a lot about "fair use" when talking about copying material from the Internet. Many Web site owners rely on the doctrine of fair use when copying photographs or sound clips for use on their Web sites. They may not realise that there is actually no such concept as "fair use" under Australian law. Like many other concepts that are bandied around online - most obviously "first amendment rights" - fair use derives from American law.

In general terms, fair use allows Americans to copy a small portion of a copyright owner's work without their permission, as long as the use does not detract from the normal market for licensing or distribution of that work. For example, assuming that there is no market for a five second excerpt of a song, under American law such an excerpt would in most circumstances be permitted as fair use, particularly if it is taken for purposes of review and redistributed at no charge.

Australian law is generally considered to be somewhat stricter. Rather than a doctrine of "fair use", we have one of "fair dealing", which applies only for purposes of criticism or review, or for purposes or research and study. If the reproduction is for purposes of criticism or review, the work and its author must be identified. If it is for purposes of research or study, you are generally limited to copying 10% (or one chapter or article) of the work under the fair dealing exception.

Reproduction of copyright text or multimedia for other purposes does not enjoy a fair dealing exemption. However, it may still be permissible to reproduce short excerpts without the owner's permission if the reproduction is not of a "substantial part" of the work. It is difficult to say what is a substantial part and what isn't; for example, 20 seconds of the song "Colonel Bogey" has been found to be a substantial part, and so have four lines of a 32 line poem. If in doubt, it is always possible to simply contact the author requesting permission.

Please Note: The information contained in this article is general in nature and cannot be regarded as anything more than general comment. Readers of this article should not act on the basis of this comment without consulting one of iLaw’s legal practitioners who will consider their particular circumstances