Search online for "fair use" and you will find endless advice about reposting memes, quoting articles and remixing music. Almost all of that advice is American. In the United States, fair use is a broad, flexible defence that asks, case by case, whether an unauthorised use is fair. Australia never adopted it. Australian copyright law works through a smaller set of exceptions called fair dealing, and each one applies only when your use fits a purpose the law has written out in advance.
The difference matters for any business that publishes content. Marketing emails, social posts, training decks, blogs and product pages all copy something. If the copying does not fit a fair dealing purpose, it is an infringement unless you have permission. This guide explains how the fair dealing scheme actually operates, which purposes it covers, where it stops being helpful, and what to do instead.
What copyright protects and who is involved
Copyright is a bundle of exclusive rights set out in the Copyright Act 1968 (Cth). For a work such as text, an image, music or software, the owner holds the exclusive right to reproduce it, publish it, perform it in public, communicate it to the public and make adaptations of it (s 31). Films, sound recordings and broadcasts get a similar set of rights under Part IV of the Act.
You infringe those rights when you do one of those things with the work, or with a substantial part of it, without the owner's licence (s 36). "Substantial part" is a question of quality, not just quantity. A short excerpt can still be substantial if it is the heart of the work.
Fair dealing is one of the carve-outs to those rights. It does not abolish the owner's rights. It simply means a dealing that would otherwise infringe is excused because it serves a purpose Parliament decided should be protected. That is the key to understanding the scheme: the purpose of your use comes first, and everything else follows from it.
Three groups of actors sit inside this scheme. The rights holders own the copyright and can licence, assign or enforce it, often through collecting societies such as APRA AMCOS for music and the Copyright Agency for text. The users are businesses and individuals who want to reproduce content. When the two disagree, the courts decide on the specific facts whether a dealing was fair, and that is where the outcomes become hard to predict.
How fair dealing works: purpose first, fairness second
Fair dealing operates as a two-stage test.
Stage one: does your use fit one of the purposes listed in the Act? Stage two: was the dealing "fair" in the circumstances?
There is no general "it felt fair" defence. If the purpose does not match, fairness is never considered. The permitted purposes are set out in ss 40 to 43 of the Copyright Act 1968 (Cth), and corresponding provisions in Part IV apply the same purposes to films, sound recordings and broadcasts (ss 103A, 103B and 103AA).
For the fairness question, the Act spells out the factors for research or study in s 40(2): the purpose and character of the dealing, the nature of the work, whether the work could have been obtained within a reasonable time at an ordinary commercial price, the effect of the dealing on the potential market for the work, and, where only part was copied, the amount and substantiality of the part taken. Courts apply essentially the same set of considerations to the other purposes.
Two features of the scheme catch businesses out. First, a commercial or promotional purpose makes the fairness assessment much harder, because it bears directly on the purpose and character factor and on the effect on the market for the original. Second, the exceptions are not getting wider. The Australian Law Reform Commission recommended in its 2013 report Copyright and the Digital Economy (Report 122) that Australia adopt a US-style fair use exception, but the Government response in 2017 declined to introduce one, and the Act still contains no such provision.
The five fair dealing purposes
Each purpose has its own conditions. The ones a business is most likely to encounter are these.
Research or study (s 40)
Dealing with a work for the purpose of genuine research or study is not an infringement if the dealing is fair. For reproduced text, the Act provides a safe harbour: copying one article from a periodical, or not more than a "reasonable portion" of a published work, is automatically treated as fair. A reasonable portion means 10% of the pages of a print edition of at least 10 pages, 10% of the words of a published electronic work, or a single chapter if the work is divided into chapters (s 40(3) and (5)).
This exception protects students and genuine researchers. It does not extend to commercial uses such as compiling research for a paying client, building a training deck or reproducing material in a marketing campaign. If your "study" produces something your business sells or promotes, the exception is unlikely to help.
Criticism or review (s 41)
Criticism or review covers using part of a work to critique it, whether the critique is of that work or of another work. Reviews of products, films, books and industry commentary commonly rely on it. Two conditions apply: the use must genuinely be for criticism or review, and you must make a sufficient acknowledgement, which means identifying the work and, where the author is known, the author (s 41).
The condition trips up promotional content. Reproducing a competitor's product image with a list of reasons yours is better is promotion, not review, if the use is really selling your own product. Quoting an extract as decoration in an otherwise unrelated blog post is not criticism or review either.
Parody or satire (s 41A)
Parody and satire became a fair dealing purpose in 2006 through the Copyright Amendment Act 2006 (Cth). A fair dealing with a work for the purpose of parody or satire is not an infringement, and, unlike criticism or review, no acknowledgement is required (s 41A, and s 103AA for audio-visual material).
The purpose is narrower than it sounds, and it is decided use by use. In AGL Energy Ltd v Greenpeace Australia Pacific Ltd [2021] FCA 625, Greenpeace used a modified version of AGL's logo in a climate campaign and argued both the parody or satire and the criticism or review defences. Burley J found that some uses, including banner advertisements, street posters and a campaign website, did not infringe, but that other uses from the same campaign, including some social media posts and photographs of placards, did infringe. One campaign produced different outcomes for different uses.
The practical lesson is that "brand jamming" or "funny marketing" does not automatically qualify as parody. The defence turns on the specific use, the extent of copying and the genuine purpose behind it.
Reporting news (s 42)
Fair dealing for reporting news permits dealing with a work for the purpose of, or associated with, reporting news. Where the report appears in a newspaper, magazine or similar periodical, a sufficient acknowledgement is required (s 42(1)(a)). Where the news is reported by broadcast or in a film, no acknowledgement is required (s 42(1)(b)), but a musical work played in the course of news reporting is only protected if the playing forms part of the news being reported (s 42(2)).
A brand newsletter summarising industry news is not "reporting news" in the sense the Act protects, and commentary that promotes your own products will struggle to fit. This exception is aimed at news reporting, not content marketing.
Professional advice (s 43)
A narrower exception protects reproduction for the purpose of giving professional advice by a legal practitioner, a registered patent attorney or a registered trade marks attorney (s 43(2)). Related provisions protect things done for the purposes of judicial proceedings (s 43(1)). This is why lawyers can copy and annotate documents when advising clients. It does not extend to general business use of content.
Two other fair dealing style provisions are worth knowing about even though they rarely apply to marketing: fair dealing for access to copyright material by persons with a disability (s 113E) and the library and archive copying provisions (ss 48 to 53).
Where fair dealing bites in business
Most copyright questions for a small business come from a handful of recurring situations. Run each one through the two-stage test.
- Reposting customer photos: Downloading and re-uploading a customer's photo without permission is a reproduction and communication of a work. No fair dealing purpose covers "our customer liked us". Platform share buttons are different from re-uploading, but they still depend on the platform's terms. Permission in writing, kept on record, is the reliable route.
- Memes and remixes: A meme built from a photo, television still or song is a reproduction. Parody or satire can protect a genuine parody, but a meme deployed as part of a product campaign is more likely to be promotional use than parody, and the AGL case shows how finely that question is decided.
- Music in ads and videos: Ten seconds of a hit song in an Instagram ad is still a reproduction and communication of both the musical work and the sound recording, and it competes with the licensing market for that music. Fair dealing purposes rarely apply. A licence from the rights holder or the relevant collecting society is the usual answer.
- Found images: An image found through a Google image search is still a copyright work owned by someone. No watermark does not mean no owner. A stock library licence with commercial use rights is the standard fix.
- Internal training materials: Copying articles into an onboarding handbook is reproduction for internal business purposes, and research or study does not cover it. Linking to the original source, or licensing the material, avoids the problem.
- Scraping and datasets: Automated scraping can reproduce copyright material at scale, and databases and compilations can themselves attract copyright. Whether a fair dealing purpose could apply depends entirely on what is collected and why, and website terms may restrict scraping regardless of copyright.
The edge cases that trip businesses up
A few misunderstandings recur.
Attribution is not a defence. Crediting the source helps satisfy the sufficient acknowledgement condition for criticism or review and for periodical news reporting, but an acknowledgement does not turn an infringing promotional use into a permitted one. Parody and satire, by contrast, require no acknowledgement at all.
Fair dealing is decided use by use. The AGL case shows the same campaign passing for some uses and failing for others, so there is no blanket "our content strategy is fair dealing" answer.
Permission is the baseline. Most commercial uses of third-party content should be handled by licence, not by hoping an exception applies. Stock libraries, direct licences from rights holders and collecting society licences all exist because most real-world uses fall outside fair dealing.
Separate rights attach to people. Publishing a photo of an identifiable person raises privacy and consent issues that have nothing to do with copyright, and moral rights, including the right of attribution, belong to authors independently of who owns the copyright. Consent and release forms matter even when the copyright question is resolved.
When an IP lawyer is worth the call
Fair dealing is decided on the specific facts of each use, which makes it hard to self-assess at scale. An intellectual property lawyer can do several things a template cannot:
- Assess a particular use against the purpose and fairness limbs, and tell you honestly whether an exception is available or you need a licence;
- Draft and review copyright licences, IP assignment clauses and content contributor agreements so the rights you pay for are actually yours;
- Put in place takedown and enforcement procedures for your own content, and respond if you receive a takedown notice or a demand letter;
- Advise on the issues a copyright question tends to drag in, such as trade marks, moral rights and privacy.
For a business that publishes content regularly, the cost of a short consultation is usually trivial compared with the cost of a copyright dispute, which can run to injunctions, damages and legal costs. An initial conversation is often enough to map the safe route for a specific use.
Plan around permission, not the exception
The fair dealing exceptions protect a narrow list of purposes, and every one of them is decided against the specific use. The businesses that get into trouble are the ones that build a content workflow on the assumption that "fair use" will catch them, then discover the exception does not fit when a rights holder comes knocking. If your content pipeline depends on reusing third-party material, treat permission as the default and fair dealing as the occasional windfall. Getting the licence, the written consent or the advice in place before publishing costs a fraction of unpicking an infringement claim afterwards.