Fair dealing in Australia — what it actually covers for your business

Every time someone at your business quotes a review, reposts an image, or drops a music track into a brand video, a copyright question arises. In Australia that question is answered by the Copyright Act 1968 (Cth) — and the answer depends on a concept that many business owners mistake for something it isn't.

Australia does not have "fair use." That is a US doctrine. Australia has fair dealing: a narrower set of statutory exceptions that permit use of copyright material only for specific, defined purposes. Outside those purposes, using someone else's copyright material without a licence is infringement, regardless of how brief the use is, how prominently you credit the source, or how little commercial benefit you gain from it.

The permitted purposes under the Act are: research or study (s 40), criticism or review (s 41), parody or satire (s 41A), reporting news (s 42), and reproduction for judicial proceedings or professional legal advice (s 43). For any use that doesn't clearly fall within one of those categories, you need permission from the copyright owner.

The examples below show how those purposes operate — and where businesses routinely go wrong.

How fair dealing plays out across common business scenarios

The facts. A B2B publisher reproduces three sentences from a competitor company's press release in its weekly newsletter, under the heading "What your rivals announced this week." The source is credited with the company name and publication date.

Why it fits. Reporting news is one of the five permitted purposes. Under s 42, fair dealing for reporting news in a periodical requires a sufficient acknowledgement — meaning the work is identified and the author or publisher is identified. Three sentences from a public announcement, attributed to the originating company, in a genuinely news-reporting context, sits comfortably within the exception.

The limit. If the newsletter dropped the attribution, the exception under s 42 would not apply for periodical news reporting, because sufficient acknowledgement is a statutory requirement in that context. And if the reproduction grew from an excerpt to a full reproduction of the announcement, the "fair" element of fair dealing would come under pressure — the dealing must not go beyond what is reasonably necessary for the reporting purpose.

A marketing blog post that critiques a rival's advertising campaign

The facts. A digital agency publishes a long-form blog post analysing a competitor's television advertisement, including a still image from the ad and a 15-second embedded clip. The post attributes both to the competitor and the production company, and the body of the post contains substantive critique of the creative choices.

Why it fits. Section 41 permits fair dealing for criticism or review, with sufficient acknowledgement. The use is genuinely critical — it identifies specific choices and evaluates them — and the amount used (one still, a short clip) is proportionate to the purpose. Courts and commentators consider whether the use goes beyond what is necessary to make the point. Here it does not.

The counter-factual. If the same still and clip appeared in the agency's pitch deck to a prospective client, with no critical commentary, the criticism or review exception would not apply. The purpose has shifted from critique to commercial promotion, and that shift takes the use outside s 41.

The facts. A small food brand posts a graphic that parodies a multinational's trademarked slogan to comment on sustainability practices in the industry. The post is clearly presented as satire; the brand's name is not used.

Why it fits. Section 41A covers fair dealing for parody or satire and, unlike ss 41 and 42, it does not impose a statutory requirement for acknowledgement. The use must still be genuinely for the purpose of parody or satire — not simply reproduction of the original with a thin comedic wrapper. Where the satirical intent is clear from context and the work is transformed to make the point, s 41A is available.

The risk. Trade mark law operates independently of copyright. Using a competitor's registered trade mark in a way that is likely to deceive or cause confusion may attract trade mark liability even if the copyright exception applies. Fair dealing under the Copyright Act does not provide a defence to trade mark infringement.

Using a stock photo found through a Google Images search

The facts. An e-commerce operator finds an attractive product lifestyle image via Google Image Search and places it on a product page. No licence is obtained. The image is credited with a photographer's name found in the image metadata.

Why it doesn't fit. No fair dealing purpose applies here. The use is decorative and promotional — it is not research, criticism, parody, news reporting, or legal advice. Attribution does not create an exception where none exists. The image is protected by copyright the moment it is created (under s 32 of the Act, copyright subsists automatically — there is no registration system in Australia). Using it without a licence is infringement.

What to do instead. Obtain a licence through a reputable stock library and read the licence terms carefully. Many stock licences distinguish between editorial and commercial use. A product page is commercial use; confirm the licence covers it.

Downloading a creator's reel and re-uploading it to your company's Instagram account

The facts. A retailer downloads a video created by a social media user that organically features the retailer's product, then re-uploads it to the retailer's own Instagram account as marketing content.

Why it doesn't fit. Downloading and re-uploading is reproduction and communication of a copyright work. Platform terms of service for the originating platform do not grant third parties a right to copy and republish the creator's content elsewhere. None of the five fair dealing purposes apply to promotional re-use of content you simply like. The creator owns the copyright in the video.

The fix. Contact the creator and obtain written permission — ideally a short licence recording the scope of use, duration, any fee, and attribution terms. This is a common and easily solved problem; creators are often willing to licence content, particularly where the business exposure benefits them too.

A training document quoting extensively from a published industry guide

The facts. An HR manager puts together an internal training deck that reproduces several pages from a commercially available workplace relations guide, including tables and formatted checklists. The document is distributed to employees and credited to the original publisher.

Why it's risky. The research or study exception under s 40 is aimed at genuine private research or study, not at reproducing commercial material for internal training purposes. Section 40(2) sets out the factors for determining whether a dealing is fair — including the purpose and character of the dealing, the nature of the material, the amount used relative to the whole, the effect on the potential market for the original, and whether a licence was commercially available. On most of those factors, a wholesale reproduction of a commercial publication for employee training performs poorly. The commercial availability of the guide and the substitutive effect of the reproduction weigh against fair dealing.

What to do instead. Obtain a licence from the publisher, or purchase a copy for each employee who needs it.

Including a short passage from a published decision in a board paper

The facts. A general counsel includes a two-paragraph extract from a publicly available court judgment in a board paper advising on litigation risk.

Why it fits. Section 43 permits reproduction for the purposes of a judicial proceeding or of a report of a judicial proceeding, and also for the purpose of giving professional legal advice. The board paper is squarely within the purpose of giving legal advice. The reproduction of a court decision — itself a public document — for this purpose is within the exception.

The pattern across these examples

The examples share a consistent structure. Uses that fit fair dealing are genuinely connected to one of the five statutory purposes; the material used is proportionate to that purpose; and where the statute requires acknowledgement (for criticism or review under s 41, and for news reporting in a periodical under s 42), it is given. Uses that fall outside fair dealing tend to share one or more of the following features: the real purpose is promotion or decoration; the amount used exceeds what the stated purpose requires; or there is a commercially available licence the user simply chose not to obtain.

Key takeaways:

Purpose is everything. Ask what the use is genuinely for, not what you could argue it might be connected to. Courts look at the dominant purpose.
Proportionality matters. Even within a permitted purpose, using more than is necessary to achieve that purpose undermines a fair dealing defence.
Attribution is required for some purposes (criticism or review, news reporting in periodicals) and irrelevant as a standalone defence for others.
Commercial context alone does not defeat fair dealing — a monetised review or a paid news site can still rely on s 41 or s 42 — but commercial motivation that replaces the substantive purpose will.
Where a licence is readily and reasonably available, relying on fair dealing becomes harder to justify, particularly under the s 40(2) factors for research or study.

How Artificer Legal can help you assess your situation

Fair dealing questions are fact-specific. The same type of content — a three-sentence extract, a 15-second clip, a single image — may fall within an exception in one context and constitute infringement in another. The difference is purpose, proportionality, and the surrounding circumstances.

An Artificer Legal practitioner can work through your specific fact pattern against the five permitted purposes, identify whether acknowledgement requirements are met, assess the risk that a use exceeds what the purpose requires, and advise on whether a licence, an IP assignment, or a cease and desist is the right next step. We can also review or draft the documents that make copyright compliance routine rather than reactive — a copyright licence agreement that records permitted scope, an employment or contractor agreement that settles ownership of work created for your business, or website terms that set clear rules for how your own content may be used.

If you have a question about a specific use or want your content governance reviewed, contact Artificer Legal.

The one test worth running every time

Across all the examples, the most reliable indicator of whether a use falls within fair dealing is this: would the use make sense, and serve its purpose, even if you couldn't commercially benefit from it? Genuine criticism, genuine news reporting, genuine parody — each of these has a communicative function that exists independently of any commercial advantage to the user. When the communicative function drops away and commercial benefit is the real reason for the use, fair dealing does not follow.

The Copyright Act 1968 (Cth) gives businesses real room to engage with, reference, and respond to copyright material — but within defined limits. Those limits are statutory, not flexible. Understanding where they fall, purpose by purpose, is what keeps your marketing, content, and communications on the right side of the law.