What are the copyright laws in relation to research and study at university?

by The FindLaw Team

It’s often necessary for students, lecturers and university researchers to adapt a literary, dramatic, musical, or audiovisual work for the purposes of research or study, so the question that needs to be asked is: Does such use infringe on copyright? We’re all aware that copyright laws are vigorously upheld, however, there are allowances for copyrighted work to be used for research or study under the ‘fair dealing’ provisions found in Parts III and IV of the Copyright Act 1968 (Cth)(the Act).

When can a copyrighted work be used for ‘research’ or ‘study’?

The Act does not specifically define the terms ‘research’ or ‘study’, therefore, the dictionary definition is applied in lieu of a description, with ‘research’ meaning “a diligent and systematic enquiry or investigation into a subject in order to discover facts or principles”, as was noted by Beaumont J in De Garis v Neville Jeffress Pidler Pty Ltd (1990) 18 IPR.

Fair dealing in regards to a literary work – and not including lecture notes as defined in s 40(1B) of the Act – does not infringe copyright laws if it is used for the purposes, or associated with, an approved course of study or research by an enrolled external student of an educational institution, as outlined in s 40(1A) of the Act.

How does the Act determine that copyrighted material is being used for research or study?

When determining whether copyrighted material is being used for research or study, a number of considerations are taken into account regarding fair dealing.

In relation to literary, dramatic, or musical material, as defined in Part III of the Act, the considerations are only taken into account if the whole body of work is being used. However, audiovisual works as defined in Part IV of the Act, the factors will become relevant to the exercise of any exclusive rights.

Alternatively, the factors for non-exclusive rights found in ss 40(2), 103C(2) of the Act are:

  • the purpose and character of the dealing;
  • the nature of the work or audiovisual item;
  • the possibility of obtaining the work or audiovisual item within a reasonable time at an ordinary commercial price;
  • the effect of the dealing upon the potential market for, or value of, the work or audiovisual item; and
  • where only part of a Part III work, adaptation or audiovisual item is reproduced or copied, the amount and sustainability of the part copied in relation to the whole item.

Fair dealing for literary, dramatic or musical works

Fair dealing exceptions for literary, dramatic, or musical material will be considered as such for the purpose of research or study if used in an article in a periodical. However, s 40(4) of the Act states that if the same work is also reproduced for different research or another course of study, the fair dealing exemption may no longer be applicable.

If the work is being used for an article in a publication, the fair dealing exceptions will be applicable for the purpose of research or study if a ‘reasonable proportion’ of the work is used, as outlined in the s 40(5) table found in the Act. Generally speaking, using a literary, dramatic or musical work, which is not a computer program, that is contained in a publication of at least 10 pages, a reasonable proportion is 10% of the number of pages found in the edition, or if the edition features chapters, than the 10% portion will apply to a single chapter.

For electronic forms of a published literary work, that is not a computer software program or a database, a ‘reasonable portion’ will be 10% of the number of words used in the work, or if the work is divided into chapters, 10% of a single chapter.



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