YouTube pops into the news quite often when it comes to high profile creators being banned for breaching one of their many policies.  Creators can get banned for any number of reasons including spreading misinformation or posting inappropriate content. 

However, it’s not just the rich and famous who can be banned by YouTube. Copyright infringements see users receiving copyright strikes, being banned, having content removed or demonetised on the regular. Copyright laws in Australia can be complex and  it’s easy to trip us up. 

Copyright can be complex especially in the area of digital content creation, and getting legal clarification early on could save you from big headaches down the line. 

Anyone using YouTube as a forum for posting their content should know about Australian Copyright laws and the Australian equivalent of ‘fair use’ exceptions called ‘fair dealing’ exceptions. 

Read on if you’re an Australian YouTube user looking to understand the reason YouTube may or may not remove your content, suspend your account or ban you. 

Copyright In Australia

Copyright protects people’s original work. It ensures that someone’s original work cannot be shared or used without their permission. Australia’s copyright laws are contained in the Copyright Act 1968. It’s famously confusing! 

Luckily, you do not need to know all of copyright law to produce content on YouTube without breaching it. 

The main points you need to know are: 

  • Copyright is automatic, you do not need to register your work for copyright to apply. 
  • Copyright will apply to any original work. 
  • Copyright only expires on original work after a long time. Depending on the type of work, copyright duration will differ:
    • Broadcasts: year of broadcast + 50 years
    • Films and sound recordings: year published + 70 years
    • Artistic, literary, musical, dramatic works: life of creator + 70 years 
  • Copyright protects how you present an idea, not the idea itself. 

With so many people expressing ideas on YouTube in a unique and original way it is clear why copyright is such a big deal on the platform. 

This article is mainly on fair dealing  but if you want to learn more about copyright laws we’ve got you covered as well: . 

Exceptions To Copyright 

Copyright does not apply to original content without exceptions. In the Copyright Act 1968, there are various exceptions that will result in an original creator not being able to enforce copyright if someone uses or distributes the content. 

‘Fair dealing’ is one of these exceptions, and the most important for YouTube creators. This is because, in limited circumstances, it allows you to use other people’s content for your own videos. A key feature of the fair dealing exception is it applies to any user of copyrighted material. This distinguishes it from other exceptions in the Copyright Act 1968, some of which apply only to specific people or bodies. 

This is why the  fair dealing exception is particularly relevant to YouTube users. 

Fair Dealing

Fair Dealing allows you to use someone else’s content for five distinct purposes: 

  1. criticism and review,
  2. satire or parody, 
  3. news, 
  4. legal advice
  5. research and study. 

 This section will run through the kinds of material that the exceptions can apply to and the specifics of each exception purpose. 

What Kind Of Copyright Material Do The Exceptions Apply To? 

The first four exceptions (research and study, criticism and review, parody and satire and news) only apply to the use of certain types of copyright material. 

These are:

  • Literary, dramatic, musical and artistic works. 
  • Adaptations of the above works.
  • Audio-visual items,  for example movies, recordings of sound and other broadcast material. 

Research And Study

You are allowed to use a reasonable amount of copyright material, without permission, for the purposes of research and study. Factors that could be considered in determining if the use is fair are:

  • The purpose of using the copyright material i.e. is the purpose to make a profit?
  • The nature of the material you are using 
  • The possibility of paying for the material 
  • The effect of using the material i.e. will the material be devalued because you are using it? 

However, the absolute main consideration is how much of the material you are using. Therefore, you should be aware of how much of the material you are using as a proportion of the entire work. For example, if you use the majority of the chapters of a book or the majority of a sound recording this likely won’t fall under the fair dealing exception. 

Criticism And Review

You are able to use a portion of copyright material, without permission for the purposes of critiquing or reviewing it. 

So if you are running a movie or book review channel on YouTube you can show or quote excerpts of the material. However, you must be clearly engaging in the act of critiquing or reviewing the material. 

If using copyright material for the purposes of criticism and review you must also properly acknowledge the original creators. 

Parody Or Satire 

Similar to review and critique, parodying or satirical copyright material is also allowed without permission. Again, the use of the material needs to stick fairly close to the use of the material. 

A key distinction of parody and satire from comedy is that it makes fun of something in order to make a comment about it or society more broadly. For example, this clip and the channel more broadly are using clips from movies for the purposes of satirising the plot and the movie making industry. This would come under the fair use exception for parody and satire. 

News

If reporting on events that are happening or have happened and using copyright material to do it, you do not need permission from the original creators. However, the use of the material cannot be incidental to the reporting of these events. Make sure whatever content you are using is necessary for the purpose of reporting on current or historic affairs!

This exception also requires you to give proper acknowledgement to the original creators of the content. 

Legal Advice

This exception is unlikely to apply to creators on YouTube. It applies in protecting legal professionals when giving professional advice from infringing copyright if they are required to use copyright material in the course of giving advice. 

Fair Use VS Fair Dealing 

Fair use is similar to the Australian ‘fair dealing’. It is used in other international contexts, such as in the US. Because of this, fair use is easily confused with ‘fair dealing’. But they differ slightly and Australian law does not actually contain any ‘fair use’ provisions.  Therefore it’s important to know how this may impact an Australian YouTube creator. 

Fair use can mainly be distinguished from fair dealing because it applies more broadly than fair dealing. This is because fair use does not require the copyright material to be used for one of the five purposes listed above (review and critique, research and study, parody and satire, reporting and legal advice). 

Instead, fair use requires an examination of why the material is being used, the nature of the work, the amount of the material used and the effect of use on the material. Generally, use will be deemed fair if it is not an attempt to make a profit off someone else’s work or using the work would devalue it. 

Fair dealing is much more strict than this. If the purpose of the work cannot be categorised under the five listed purposes, then it will be in breach of copyright. 

Still Unsure… 

Fair dealing can be complicated and can even feel quite restrictive compared to fair use. However, if the use of copyright material is disputed, it should be assessed on a case by case basis. 

If you’ve got questions on YouTube legals,  our lawyers  can help you navigate any issues you may be having, or advise you on how you can stay compliant with Australian copyright laws. 

Get in touch with us at team@sprintlaw.com.au or on 1800 730 617 for free, no-obligations chat.

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