In conformity with international practice, Australian law of intellectual property1 protects copyright, inter alia, in literary, musical, dramatic and artistic works, but grants exceptions for "fair dealing."2 On the one hand the Australian law recognises that one of the objectives of copyright protection is "that one [person] must not be permitted to appropriate the result of another's labour,"3 and, on the other, it accepts that another objective is "to promote the progress of science and useful arts."4 Thus, the copyright legislation encourages creative endeavours, and at the same time safeguards public interest, for example by encouraging economic development by providing incentives. To that end, one of the defences for copyright infringement provided in the Copyright Act 1968 is "fair dealing" including "for the purpose of research or study." The Australian (Federal) Copyright Amendment (Digital Agenda) Act 2000, which is a comprehensive and all-inclusive response to the fast-evolving nature of the internet, has kept up the tradition and included the defence of fair dealing for the purpose of research or study.
This article examines some relevant areas of copyright law, particularly appropriate to the research or study aspects of the fair dealing provisions, as interpreted by the Australian courts.
Statutory protection of copyright goes back to the Statute of Anne - "Act for the encouragement of Learning"-(UK, 1709). In Miller v Taylor6- copyright was accepted as a form of personal property. The House of Lords decided in 1774(7) that the scope and extent of copyright was within the legislative jurisdiction, and the rights of authors existed only by statutory provision, for example the period of time for copyrighted materials. When the Australian colonies were established, the first laws of intellectual property were as legislated by the imperial Parliament. Then, some colonies either supplemented the Imperial laws, or passed their own laws. After Australia came into being as a result of the federation, the Commonwealth (Federal) Parliament occupied the ground.8 The present legislation is the (Federal) Copyright Act 1968.9 The Act, while giving detailed and numerous copyright protections, provides a number of specific circumstances when the use of copyright material is allowed without permission or payment, and therefore will not be an infringement.10 The major provisions" allow the use of a copyrighted literary and other works12 for "fair dealing for the purpose of criticism or review",13 "fair dealing for the purpose of reporting news"14 and, what this article is concerned about, "fair dealing for the purpose of research or study."15
In addition, it is clarified that a fair dealing (other than lecture notes) does not constitute an infringement of the copyright materials if it is for the purpose of, or association with, an approved course of study or research by an enrolled external student of an educational institution.16 The expression "lecture notes" is defined as "any literary work produced for the purpose of the course of study or research by a person lecturing or teaching in or in connection with the course of study or research."17
A special qualification is added, so far as research and study defence is concerned, in section 40(2): in determining whether a dealing by way of copying the whole or part of the work constitutes a fair dealing, regard must be had to factors including:
"(a) the purpose and character of the dealing;
(b) the nature of the work or adaptation;
(c) the possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price;
(d) the effect of the dealing upon the potential market for, or value of, the work or adaptation; and
(e) in case where part only of the work or adaptation is copied-the amount and substantiality of the part copied taken in relation to the whole work or adaptation. …