Fair dealing (or 'fair use' in some parts of the world) is a key concept in copyright law. It allows any person to use copyrighted material in certain ways where you would otherwise have to seek the permission of the copyright holder. In New Zealand the following uses are allowed.
Criticism, review or news reporting
You can copy parts of a work for the purpose of criticism or review, provided there is “sufficient acknowledgement,” i.e. acknowledging the author/source and date of the work. Multiple copies can be made (compare 'Research or private study' below, which allows only a single copy). The provision to use parts of a copyrighted work for the purposes of criticism or review is obviously a key concept in the academic context, as it is this that allows any person to copy insubstantial parts of a work in an academic paper, a newspaper article, a documentary, a blog and so on. This provision is not restricted to any particular type of work (compare 'Research or private study' below.) The 'fairness' or otherwise of any copying would be determined according to similar factors as those listed under 'Research or private study' below - but see the 'Further Reading' section below for more information and specific examples.
This provision also covers news reporting.
Research or private study
You can make a single copy (cf. 'Criticism & Review' above) of part of a work for your own research or private study, as long as the copying is 'fair.' This covers literary, dramatic, musical, or artistic works or the typography of a published edition (cf. any type of work under 'Criticism, review or news reporting' above). What is fair would be determined according to:
- the purpose of the copying (e.g. for some commercial purpose would be less fair than for private study);
- the nature of the work (e.g. whether it required a high degree of skill to produce it);
- whether the work could have been obtained within a reasonable timeframe at a standard price;
- whether the copying would affect the commercial value of the original work; and
- the amount copied in relation to the whole.
Note that the 'research or private study' provision applies to the carrying out of research, not to any publication that might arise from that research. You can only make a single copy under this provision and publication obviously involves making many copies.
Myths about fair dealing
- When, for example, an academic staff member quotes a short excerpt from another text in a journal article, this is allowed because of fair dealing not because the person works at a university. Any person can deal with a work in this way because part of a copyrighted work can be used for the purpose of criticism or review.
- There is no 'magic figure' for fair dealing of 10% of a work. What is 'fair' would be determined by a court according to the following factors outlined above under 'Research or private study.' In some cases a very small amount could be considered unfair (for example a very distinctive part of a song).
The following links provide useful general explanations and specific examples from case law. Several of these relate to other countries and there will be differences to NZ law but they illustrate the factors courts would be likely to consider in determining whether a use was fair or not. And it is true that decisions in similar jurisdictions influence interpretation in NZ cases.
- Acts Permitted in relation to Copyright WorksThe relevant sections from the NZ Copyright Act, s40-43.
- Fair Dealing (NZ) InfosheetUseful summary of NZ legislation from the Copyright Council of NZ.
- What Makes Something Fair? – A close look at fair dealingDeals with UK law but provides a good overview of UK fair dealing (upon which NZ's is based), including references to specific court decisions and useful information on 'The Test for Fairness'.
- Stanford Summaries of Fair Use CasesUS jurisdiction but a long list of cases where fair use was upheld or rejected by a court, with examples of various types of material: text, artworks, audiovisual, internet and music. Also includes a section about parody/satirical uses (which NZ lacks as a provision in legislation).
- Columbia University Libraries Fair Use Case SummariesAgain US cases but an interesting list of cases in the academic context, including the various factors weighed by courts in making a judgement.
In addition to allowances provided under fair dealing staff in educational institutions can copy material for educational purposes, a provision outlined elsewhere on these pages.