Fair Dealing

Fair Dealing

Protections and exceptions

Copyright law is all about the balance between protecting creators' rights and ensuring users have access to intellectual and creative content. The law attempts to achieve this balance in a variety of ways, such as limiting the period of copyright protection, excluding some types of documents from copyright protection, and by allowing exceptions from infringement in certain cases. 

The legal exceptions from infringement are often called “copyright exceptions” or “permitted uses”. These are found in Part 3 of the Copyright Act 1994 and are summarised in the “Exceptions to Copyright” fact sheet. 

Fair dealing exceptions

Arguably the most important exceptions are the fair dealing exceptions. Fair dealing allows people to deal with copyright material for specific purposes where it is fair to do so, without the need to get permission from copyright owners. 

A “fair dealing” with a work does not infringe copyright if the purpose is for:

  1. research or private study
  2. Criticism and review
  3. Reporting on current events

What is “fair” will depend on the facts of a particular case. Factors to take into account when considering fairness, include those listed below under the research or private study section. 

Research or private study 

Copying of copyright material does not infringe copyright if it is for the purpose of either research or private study − and it is fair. 

The terms “research” and “private study” are given an ordinary meaning. In one case, “research” has been described as “a diligent and systematic inquiry or investigation into a subject in order to discover facts or principles”. In New Zealand, research doesn’t strictly need to be for private purposes and may be commercially motivated, though the law is unsettled in this area and it’s likely any commercial aspect would detract from how “fair” the copying is. “Private study” is generally personal to the individual doing the study. 

The Copyright Act lists several factors that must be taken into account in determining whether copying for research or private study is fair. These factors are: 

  1. the purpose of the copying (for example, copying for commercial purposes is less fair than copying in connection with a course of study); 
  2. the nature of the work copied (for example, it may be less fair to copy from a work that required a high degree of skill than a mundane work); 
  3. whether the work could have been obtained within a reasonable time at an ordinary commercial price (it may be fair to copy all or part of a work that is not available commercially, but unfair to copy when you could have paid to use it); 
  4. the effect of the copying on the potential market for or value of the work (for example, where a person copies a work that is available for sale or licence); and
  5. the amount and substantiality of the part copied (for example, it is less fair to copy a large or important part of a work than to copy a small or unimportant part).

Finally, and importantly, this fair use exception only allows a user to make one copy for their own individual use. The exception does not permit multiple copying, copying for students, or directing students to make their own copy. If you’re a teacher or an institution looking to make multiple copies check out the “Copyright Use in the Education Sector” and the “Copyright on Your University Campus” fact sheets.

Criticism and review

A fair dealing with a work for the purpose of criticism or review does not infringe copyright, as long as there is “sufficient acknowledgement” of the creator whose work is being critiqued. This generally means that the original creator (who may not be the copyright owner) and the title of the work, are acknowledged. 


News reporting

A fair dealing with a work (other than a photograph), for the purpose of reporting current events, requires “sufficient acknowledgement” unless the reporting is by means of a sound recording, film, broadcast or cable programme.

Fair dealing myths

Fair dealing shouldn’t be thought of simply as a “personal use” exception to copyright infringement. Nor does fair dealing allow copying of 10% of work regardless of anything else. It’s important to look at the factors above to understand whether the use is actually fair.  

Different exceptions in different countries

It’s important to know that the copyright exceptions in New Zealand can be different to other countries. In the United States there’s a concept called “fair use” that provides a defence for certain copyright uses without the owner’s permission. “Fair use” is far more flexible and open-ended than New Zealand’s “fair dealing” exception which only applies in certain situations as set out in the Copyright Act. Notably, New Zealand does not have a fair dealing exception for “satire and parody,” which many other countries, including the United States, have.

New Zealand law determines the rules that apply to use of copyright material in this country. Use of material outside New Zealand is governed by the copyright rules in the relevant country. 
This means that if copyright in a New Zealand work is infringed in the United States, for example, the New Zealand copyright owner will be able to take action under the relevant United States law and will be entitled to the same protection as a United States copyright owner.