Five fairness factors and moral rights

Fair Dealing - five fairness factors

Australia doesn't have a broad Fair Use exception, so you can't use this as a defense.

The most common exception at UOW is the Fair Dealing exception, outlined by five fairness factors.

The severity of copyright infringement depends the way you've obtained and used the copyright material in relation to the fairness factors.

Fairness factors and moral rights

The purpose and character of the use

For example, is the new work simply a straight copy of the original material? If the new work changes the original in some way, it's more likely to be seen as fair. Also, the commercial use is usually seen as being less fair.

The nature of the copyright material

For example, copying from an out of print book may be seen as more fair, compared with copying from an in-print publication.

The possibility of obtaining the material within a reasonable time at an ordinary commercial price

For example, if a publisher sells recording sheets for a psychological testing instrument, making unlicensed copies for students will not be seen as fair.

The effect of the dealing or recording upon the potential market for (or the value of) the material

For example, copying material from a textbook for use in another textbook (even if it's a free, 'open textbook') is not fair use.

Where only part of the material is used, the amount and sustainability of the part used in relation to the whole material

This is as much about quality as it is about quantity. For example, copying key scenes from a play could be viewed as being less fair than copying other, less important scenes.

The right of an author or performer to protect the integrity and ownership of their work

In relation to an author:

  • a right of attribution of authorship; or
  • a right not to have authorship falsely attributed; or
  • a right of integrity of authorship.

In relation to a performer:

  • a right of attribution of performership; or
  • a right not to have performership falsely attributed; or
  • a right of integrity of performership.