Fair dealing for Australian podcasters

A crash course on how to use other people’s content responsibly.

Do the right thing.

Editor’s note: We at the Walkleys had a lot of questions for our own podcast scheming (Walkley Talks, coming back after Storyology)—so we figured other podcasters must as well. The good people at LegalVision have graciously written up answers to keep us out of trouble. But as we worked on this guide … it kept expanding! Though it’s much easier to read than the law itself, it is long. So here’s a table of contents:

1. What’s the difference between “fair dealing” and “fair use”?
2. What does the “fair” in fair dealing mean?
3. Can I use old clips without the copyright owner’s permission?
4. When do I need to worry about other countries’ intellectual property laws?
5. When do I need a Creative Commons licence for my own work (and what kind should I use)?
6. Is a Creative Commons licence appropriate for my work?
7. How do I properly attribute Creative Commons-licenced material in my podcast?
8. When do I need to credit the creator?
9. Can I create a parody song for my podcast?
10. Can I read sections from a book on my podcast?
11. When can I use someone’s work without permission?
12. Say I manage to sell my podcast to a radio station. Do I have any legal considerations for broadcast regarding the clips or music I’m using?

And at the end, you’ll find a checklist on how to ensure your podcast is legal.

—Kate Golden, Walkley multimedia manager

1. What’s the difference between “fair dealing” and “fair use”?

In Australia, fair dealing is an exception to copyright infringement. (This approach differs to the United States, where the analogous term “fair use” is a legal defence and is broader than fair dealing.) A podcaster can use copyright material without the owner’s permission if the use of the material is fair — see below for discussion of what that means — and if the purpose is for one of the categories set out in Copyright Act 1968 (Cth):

• Criticism and review: Using excerpts from Barack Obama’s autobiography in a podcast commenting on his writing style.
• Reporting news: Using excerpts from Rafael Nadal’s victory speech while reporting on the French Open Final.
• Parody and satire: Creating a new song based on the melody of “Crazy in Love” to comment on the obsession with celebrity empires.
• Research and study: Photocopying sheet music while researching styles of contemporary music for your upcoming podcast.
• Professional advice: This exception applies only to lawyers giving professional advice. For example, a lawyer may reproduce a book extract to give you legal advice on how much you can fairly use in your podcast.

2. What does the “fair” in fair dealing mean?

Whether your use is fair depends on the circumstances. This is assessed from the perspective of a reasonable and objective person. For example, reading quotes from a book for an audio book review may be fair use, but reading an entire chapter won’t be.

When assessing whether your use is fair, a court might consider:

• The purpose and type of your activity.
• Whether your use was genuinely for one of the five exceptions set out in the Act. If your podcast reviews albums, but you include a song as a break between segments, your use may be unfair because you aren’t reproducing that song to critique.
• How much you want to copy: The more you copy, the less likely it is considered to be a fair dealing.
• The type of work you want to copy.
• Whether you can purchase the work in a reasonable time at an ordinary price. It’s typically not fair to copy the work if you can readily buy it or obtain a licence.
• How your use will affect the market for original work. For instance, reproducing a song is likely to be unfair if the creator sells or licenses copies from its website.
• Sufficient attribution to the original author. If you give the impression that you created the work, but you didn’t, then your use is likely to be not fair.

3. Can I use old clips without the copyright owner’s permission?

The duration of copyright depends on the type of work. Copyright in sound recording lasts for 70 years from the year the recording was first released. Sound recordings can include any of the following:

• songs
• music
• soundtracks
• audio books
• sound effects
• audio recordings of speeches and interviews
• podcasts

After this time expires, copyright no longer protects the work, and you can use it freely. But don’t automatically assume that you can use a piece of music simply because it’s old. If copyright has expired for a particular recording, there may still be copyright in elements of the song such as the music, ensemble or lyrics.

For example, copyright may have expired for the composition of Beethoven’s Symphony №3. However, copyright may still attach to the particular recording that you want to use, such as the Sydney Symphony’s 2007 recording.

4. People can download my podcast across the globe. When do I need to worry about other countries’ intellectual property laws?

Most countries are party to various international treaties that require its members to grant the same IP privileges or immunities to other members’ citizens as they do their own. This means that if Jerry, a Californian local, creates a podcast in the US, his podcast will be protected in Australia in the same way as Australian material. So if Chris, an Australian podcaster, decides to include an excerpt of Jerry’s podcast without Jerry’s permission, she would be infringing his copyright unless an exception, like fair dealing, applied.

5. When do I need a Creative Commons licence for my own work (and what kind should I use)?

Creative Commons licenses allow you as the creator to retain the copyright in your podcast while allowing others to use your work. These licences work regardless of where you are in the world and last for the duration of your copyright. There are four conditions in a CC licence.

1. Attribution: Users can share and modify your work in any format, but they must credit you in the way you request, provide a link to the licence, and indicate if they made changes to your work.
2. ShareAlike: Users can share and modify your work in any format, provided they make the modified version available on the same license terms. They can only distribute their work under different terms with your permission.
3. NonCommercial: Users can share and modify your work in any format, but cannot use it for any commercial purpose without your permission.
4. NoDerivatives: Your work can only be used in its original form unless you allow users to modify your work.

Creative Commons offers six different licenses for creators — you can learn about them here.

6. Is a Creative Commons licence appropriate for my work?

Applying a Creative Commons license to your work can help with content distribution and building a reputation for your brand. Licensing, for example, allows other creators to generate publicity for your podcast by freely using or sharing your work. But before you apply a CC license to your work, consider the following:

• Are you looking to profit from your podcast? A Creative Commons licence may be suitable if you’re looking for exposure and not to commercialise your work.
• Legal rights. You must own the copyright in the original work you want to license or have permission to license it.
• The licence is non-revocable. Ensure that you won’t want the rights back to your audio in the future because you can’t revoke the licence at a later date.
• Using a Creative Commons licence: If you’re a member of a collecting society such as APRA (such societies collect royalties on behalf of their members), check whether you can obtain a Creative Commons licence.

7. How do I properly attribute Creative Commons-licenced material in my podcast?

All Creative Commons licences require you to provide attribution to the creator. If you’re using CC material in your podcast, the best way to meet this requirement is by mentioning the creator’s name during the podcast, either when the work is used or during the credits — or stating that the work was used under a CC licence. In addition, you should provide full attribution on the website where your podcast is available.

Alternatively, you may choose to provide full attribution on your site, with a corresponding time signature as to where the Creative Commons material appears in your podcast.

In your full attribution, be sure to include all of these:

• the creator’s name and title of the work
• the name of the licence type attached to the work
• links to the creator’s own website
• indications of any modifications you have made to the work (e.g. remixed the song)

8. When do I need to credit the creator?

The Copyright Act 1968 (Cth) protects a creator’s moral rights in work they create — regardless of whether the creator still owns the copyright in that work or not. One of these moral rights is the right of attribution.

This means you should credit the creator in your podcast if you use their material in one of the following ways:

• reproduction (e.g. reading out a book extract onto an audio recording system)
• publishing (e.g. making someone else’s song public for the first time)
• performance (e.g. performing a play script through voices and sound only)
• adaptation (e.g. translating a poem from Spanish to English)
• communication to the public

Your acknowledgement of the creator must be clear and reasonably prominent. This means that someone listening to your podcast or accessing your website would know the creator’s name. It’s also best practice to credit the original creator in the podcast itself.

You will not need to provide an acknowledgement of the creator if either:

• the creator has consented in writing to not being identified
• or it’s reasonable in the circumstances not to identify the creator (e.g. the process of identifying the author would result in unreasonable difficulty or expense).

9. Can I create a parody song for my podcast?

You can use someone else’s copyright material to create a parody song, provided the use is fair. Parody is usually regarded as an imitation of a work that can include parts of the original.

Your song must comment on the original work or its creator to qualify as a parody. For instance, Weird Al Yankovich’s parody “TMZ” samples Taylor Swift’s song “You Belong With Me” to comment on Swift’s celebrity persona and relationship to the paparazzi. Simply changing the lyrics or making a funny version of the song, however, won’t automatically make your song a parody.

10. Can I read sections from a book on my podcast?

If you have permission from the copyright owner, you can read sections from a book on your podcast. If you don’t have permission, you can still include book extracts in your podcast if your use of the material is fair and falls under one of the following fair dealing exceptions:

• Criticism or review: Reading out paragraphs of Tim Winton’s Dirt Music to critique his lyrical writing style or discuss his exploration of environmental issues. Your criticism or review can relate to the book you want to quote or other material.
• Research or study: Weaving excerpts from John Howard’s biography within a discussion about the changing landscape of Australian politics in the 1990s. Take care not to simply reproduce the text in spoken words.
• Parody or satire: Reading extracts from celebrity autobiographies to satirise the journey or teenage dream to Hollywood star.

If your use of the book extracts does not fall under one of these categories, you will need the copyright owner’s permission before reading any sections on your podcast.

11. When can I use someone’s work without permission?

You can use someone else’s work without their permission in any of the following circumstances.

• You are not using a substantial part of the original material. “Substantial part” does not necessarily mean a large part. It can also refer to an important, unique or easily identifiable part of the material. So, opening your podcast on how war reporting has changed with the first eight bars of the ‘Game of Thrones’ theme is not a very good idea.
• The copyright of the other work has expired. The length of copyright protection varies from 50–70 years, depending on the type of work. So it’s permissible to quote Shakespeare’s iconic phrase, “Romeo, Romeo, wherefore art thou Romeo?”, but it’s not okay to copy Orwell’s 1984 opening, “It was a bright cold morning, and the clocks were striking thirteen.”
• Copyright does not attach to the work. If you are using facts or ideas in your podcast — you will not infringe copyright. But be careful that what you are using is the fact or idea — and not its expression in the original material.
• Your organisation owns the copyright. If you or your organisation own the copyright, you are unlikely to encounter infringement issues. But, it’s always sensible to check whether your organisation owns the work. If it has been created by freelancers or contains third-party material within it, you will have to get permission to use the work.
• One of the fair dealing exceptions set out in Question 1 applies. (research of study, criticism or review, parody or satire, reporting the news or professional advice).
• You are copying a work for private or domestic use.

12. Say I manage to sell my podcast to a radio station. Do I have any legal considerations for broadcast regarding the clips or music I’m using?

Let’s say that you have created a podcast and you pay a licence fee to use music as an interlude. If you sell that podcast, what happens to the licence? Essentially, because you don’t own the music, you don’t have rights to sell the music component of the podcast which is licensed to you. The right to sell copyright-protected material belongs to the creator. In this scenario, the creator has not transferred the ownership of the music to you — which is known as an assignment, rather than a licence. If the rights to the music were transferred to you, then you are permitted to sell the music as part of your podcast.

The radio station would engage in copyright infringement if they aired the podcast without having rights to the music. This would also likely constitute a breach of your licence. How then do you deal with the licence when selling the podcast? In summary, we recommend that you either:

• Check your licence. Some licences will allow you to assign your licence or grant a sublicence to another party. If you assign your licence, you are essentially transferring the rights granted to you under your licence to the radio station. If you sub-licence, you are extending these rights to the radio station. With both of these options, the radio station will have rights to air the podcast, with the music, without infringing on the copyright of the creator.
• Or speak to the creator. If you do not have permission to sublicence or assign your licence, the creator may grant the radio station their own licence to use the music, effective from the date of sale of the podcast. Alternatively, the creator may agree to assign their rights to the music to the radio station.

Checklist: How can I ensure my podcast is legally compliant?

• Have I used material in my podcast that someone else created?
• Do I need permission to use that work?
  The answer is NO if:

—you’re not using a substantial part of the original material;

—the copyright of the other work has expired;

—The work was not protected by copyright;

—Your organisation owns the copyright; or

—one of the exceptions to copyright (e.g. fair dealing, as discussed above) applies to your use of the work.

The answer is YES if your use of the work doesn’t fall into any of the above categories.

• Have I obtained permission to use the work in my podcast?

That is,
—through an assignment; or

—through a license (either from the copyright owner, or licensing intermediaries such as Creative Commons or the Australian Performing Rights Association)

• Have I sufficiently attributed the original work to the creator?

Chris Mittiga is a Practice Leader at LegalVision. Ayatalla Lewih and Vaishnavi Suryaprakash contributed to this guide.

More podcast legal questions? Ideas for how else we at the Walkleys can make ourselves useful? Australian podcast recommendations? Email us: walkleys@walkleys.com.