An infringement will occur if you use a substantial part of copyright material without the permission of the copyright owner.
A 'substantial part' is not defined by the Copyright Act. However, the courts consider that the quality of what is copied, not the quantity, is the deciding factor. A substantial part includes an essential feature or a 'vital or material part even though only a small part'. For example, reproduction of the chorus of a song or the most recognised part of a song (e.g. the first few bars) may be substantial enough to be an infringement even though there are multiple verses or movements.
A person may also use a 'substantial part' even if they have edited the material or followed a similar structure or layout.
There are no guidelines about the quantity or percentage of copyright material that may be used without permission (apart from the provisions of the Copyright Act, which allow for some uses of copyright material that would otherwise be infringements). Each case depends on its facts.
Infringement defence options
Even though a substantial part of copyright material has been used, there may be a defence or an exception to the infringement provisions in the Copyright Act which allows the use of the copyright material without permission.
Defences and exceptions include:
- Fair dealing for research and study. A person may use a 'reasonable portion' of a literary, dramatic or musical work for research or study. This is defined as 10% of the work in an edition of more than 10 pages or up to one chapter, if the work is divided into chapters. For artistic works and works that are not published as editions and audio-visual material, the use must be assessed by reference to the factors set out in the Copyright Act.
- Fair dealing for criticism or review. Where this defence is relied upon, a 'sufficient acknowledgement' must be made by identifying the work by its title and, unless the work is anonymous, identifying the author. Determining whether use constitutes 'fair dealing' under this defence (and the reporting news defence below) can be difficult. Generally, the whole of the copyright work should not be used. For example, long extracts with short comments criticising or reviewing the work may be unfair; short extracts with long comments may be fair.
- Fair dealing for the purpose of parody or satire. This defence allows copyright material to be used for the purpose of parody or satire. For example, through an overlapping satirical script referencing an original artistic work.
- Fair dealing for reporting the news. Similar considerations apply as those for the defence for criticism and review.
- For the purpose of giving professional advice, or in a judicial proceeding.
- Performance in class for educational instruction. The use must be part of educational instruction, must not be provided for profit, and the audience must be limited to those taking part in the instruction.
- Copying by educational institutions.
- Special circumstances for artistic works in public places. This includes making a photograph, painting, drawing, engraving or film of a sculpture or a building, or a model of a building. It also includes the incidental appearance of artistic works in public places in a film or video (e.g. painting, photograph, mural or sculpture appearing in the background of a film).