Australia’s copyright law draws a firm line around what counts as fair dealing. Unlike the broader, open-ended fair use approach used in the United States, the Australian system only permits limited uses of copyrighted material when they fit one of the purposes listed in the Copyright Act. As Katrina Crooks, principal and head of Spruson & Ferguson Lawyers, put it, if a use does not fall within one of those recognised categories, fairness alone will not save it.

Those categories are narrow but specific: research or study, criticism or review, parody or satire, news reporting, and legal advice. Australian libraries, universities and copyright bodies describe the regime as a statutory exception rather than a general licence, meaning any use outside those purposes may require permission from the rights holder. The University of Newcastle and the Australian Libraries and Archives Copyright Coalition both stress that fair dealing is not a free-standing right to use material simply because the use seems reasonable.

Even where a dealing is made for one of the permitted purposes, courts still assess whether it is fair. The usual questions are familiar across common-law jurisdictions: why the material was used, how it was used, what kind of work it was, how much was taken, and whether the use affected the market for the original. Australian guidance also highlights an additional consideration not found in the same way elsewhere: whether the work could have been obtained commercially within a reasonable time.

That makes Australia’s doctrine less adaptable than Canadian fair dealing and far more limited than US fair use. Canadian courts have tended to treat fair dealing as a user right, interpreted broadly, while American law leaves room for a wider range of uses so long as the overall balance favours fairness. Australian courts, by contrast, have applied the exception cautiously and case by case, and Crooks said there have been relatively few decisions because the doctrine is used so sparingly.

For now, there appears to be little appetite for a major shift. Crooks said earlier reviews by the Australian Law Commission and other inquiries have floated wider reform without producing change. More recently, the government declined to adopt an interim Productivity Commission suggestion for a text-and-data-mining exception that might have given AI developers more room to train models on copyrighted material. The commission later retreated from that idea in its final report, instead urging a “watch and wait” approach to AI’s impact on copyright. On current evidence, Australia seems unlikely to move towards a broader fair use model soon.

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Source: Noah Wire Services