Can I Use Copyrighted Material for Free Under ‘Fair Dealing’?

Yes, you may be able use copyrighted material for free under the concept of 'fair dealing,' but there are specific conditions that must be met. Fair dealing is a legal defence that allows the use of copyrighted works without obtaining permission from the copyright owner in certain contexts. These contexts include reporting current events, criticism or review, and quotations from a copyrighted work for instance.

When considering whether your use qualifies as fair dealing, several key factors are taken into account. 

1. Commercial Impact

The use should not compete with or negatively impact the commercial value of the original work. If your use substitutes the original, potentially causing a loss of sales or profit for the copyright holder, it’s less likely to be considered fair.

2. Proportionality

The amount of the copyrighted work used matters. Using a small, non-essential part of a work is more likely to be deemed fair compared to using a substantial or central part of it. The less significant the portion used, the stronger the case for fair dealing. The publication status of the work is also relevant, if the work has not been previously published, its use is unlikely to be considered fair.

3. Publication Status

If the copyrighted work has not yet been published, using it is less likely to be considered fair. Fair dealing typically favours the use of already published material.

It is crucial to source the copyrighted material fairly. Obtaining it through deceptive means could invalidate the fair dealing defence.