copyrighted material

Can you use Copyrighted Material?

By Estephen Bugarin

In line with global Intellectual Property standards, Australia enforces copyright laws through legislation such as the Copyright Act 1968 (Cth) to safeguard the interests of IP owners. These legal protections provide creators exclusive rights to their works while preventing unauthorised copies or usage of their intellectual property. The balance between the protection of creators’ rights and the public’s lawful access to materials is maintained within this legal framework. The following article will detail the process for utilising copyrighted material and the process in determining whether a material is copyrighted.

Examining the Material

In the process of conducting a project, it is normally coupled with the use of existing materials. For example, the placement of a product in an advertisement poster. At this stage, it is difficult to identify whether this ‘existing material’ is protected by copyright or whether it is freely available in the public domain.

At some instances, it is simple to identify the ownership of a material; however, it is also true that some materials cannot be covered by copyright despite seeming as if they can be. Therefore, the first question step is to examine the material and determine whether the material is capable of copyright protection; what kind of work the material is; and whether the material is original.

This process involves an analysis of the following sections of the Copyright Act 1968 (Cth).

Section 22

This section relates to the making of the work/material. Copyright normally protects a work that exists in a tangible or physical form. Tangible relates to work stored on a medium that can be perceived, reproduced, or otherwise communicated. To be copyright protected, a work must be a literary, dramatic, musical or artistic work. For example, while a story may be protected by copyright, their characters may not be. There are other works that may not be categorised by the above four, these are works like sound recordings, films or broadcasts and other works. This is because when a work falls under the latter list, it is difficult to determine when it has been deemed to have been and who owns these works.

Section 10 & 189

These sections outline the statutory definitions that describe what qualifies as a literary, dramatic, musical, or artistic work:

  • Literary Work: work expressed in words, figure or symbols.
  • Dramatic Work: a choreographic show and a scenario or script of a cinematograph film.
  • Musical Work: any musical work enclosed in a recorded medium (transcript or sound recording).
  • Artistic Work: a painting, sculpture, drawing, engraving, photograph, building or model of a building, or work of artistic craftsmanship.
Section 32

A work must be an original work for copyright to subsist in the work. However, it must be noted that ‘original work’ in a literal sense is different to its definition held under the legislation. It must not be confused by the definition of original work that means that it has not been done by another. Rather, original work by statutory definition is a work that has been made over an extended period of time. For example, a considerable time and effort must be put into the work to satisfy the statutory definition. Copyright law focuses on the substance that the author has contributed to the resulting work.

The Owner and their Exclusive Rights

The next stage in identifying whether copyright subsists in a work is to identify who is the author(s) and their exclusive rights to their works. Generally, when a work is made, the author(s) of the relevant work will be their owners. However, the nature of the publication of the work can change the ownership of the copyrighted material. This can arise from specific terms in the contract between the author and publisher, or the medium in which the work has been published. For example, in circumstances where the work is published for inclusion in a newspaper, magazine or similar medium, the author(s) vest ownership to the publisher. However, the key notion is to identify the terms & conditions of each publisher different publishers have different interpretations to their copyright policies.

The exclusive rights of the owner to the copyrighted works are and limited to:[1]

  • Their reproduction
  • Their publication;
  • Their performance;
  • Their communication; and
  • Their adaptation;

Your Rights to Use Copyrighted Material

The use of the copyrighted material by persons other than the author is regulated by ‘Fair Dealing’ under Australia vested in the Copyright Act 1968. The legislation outlines three instances a consumer can use copyrighted material protected by fair dealing:

  • Research or study;
  • Parody or Satire; and
  • Reporting news.

There are other facets which may fall under fair dealings however, it is a concept that is difficult to define and should be taken in a case case-by-case basis.

Research or Study

The use of copyrighted material will generally not constitute an infringement of the copyright if the relevant material(s) is used for research or study purposes. Section 40 of the Copyright Act outlines that copyright infringement will not occur if the relevant material is used ‘… [by] an approved course of study or research by an enrolled external student of an education institution.’ However, ‘research or study’ is not limited to such circumstances. Incidentally, research or study can be formed if the relevant copyrighted material is used to critique that material. For example, video essays critiquing various scenes of a movie for use in YouTube. However, limiting the use of long scenes in films is prudent. This matter considered in ‘The Panels Case’, in which Judge Conti in the proceedings laid out the principles of fair dealing:

  • Fair dealing is judged by honesty;
  • Fairness aligns with criticism or news reporting;
  • Criticism/review may be strong and broad;
  • Criticism/review must be genuine;
  • Hidden motives may negate criticism/review;
  • Criticism/review extends to underlying thoughts;
  • “News” is not limited to current events;
  • ”News” may include humour.
Parody or Satire

If copyrighted material is used for parody or satire, it may escape the scope of copyright infringement. It will normally be accepted as parody or satire if the original artistic work has been imitated so humorously that it will set it apart from a mere copy of the original artistic work. For example, the use of a skit to summarise a film for mere enjoyment. Under section 41A of the act, parody or satire falls under fair dealing and will not infringe on someone else’s copyrighted work. However, a parody of copyrighted material must have ‘mental labour involved in the process and must produce an original result’[2] and will be assessed in relation to the ‘ substance taken from the original sources.’[3]

Reporting News

Section 42 of the Act permits the fair dealing of copyrighted material for the purpose of reporting news in mediums such as newspapers, magazines, or films. However, property acknowledgement must be made, and the use must align with the purpose of reporting news. When using copyrighted music, it is normally not considered an infringement if it forms part of the news itself.


The Copyright Act 1968 (Cth) serves as the legal framework of Australia’s copyright law, striving to achieve a balance that protects intellectual property whilst not hindering the public use of creative works. The Act sets out the standards for what can be copyrighted, specifies ownership rights, and introduces the concept of fair dealing. Through a nuanced legal framework, it accommodates different types of artistic works and provides certain allowances for research, parody, and news reporting.

This article is not meant to act as legal advice and serve the purpose of providing academically generalised information regarding the general principles of Copyright Law. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Foulsham & Geddes are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.

[1] Copyright Act 1968 (Cth) ss 31 & 85-9.

[2] Glyn v Western Feature Film Co [1916] 1 Ch 261.

[3] Twentieth Century Fox Film Corporation v Anglo Amalgamated Film Distributors Ltd (1965) SJ 107.