“The fair dealing exception in Australia is limited to the purpose-based exceptions listed in the Copyright Act. If a use doesn’t fall within a listed purpose, fair dealing simply does not apply, regardless of fairness.” — Katrina Crooks
By Julius Melnitzer | May 8, 2026
Australia’s iteration of the “fair use” doctrine — called “fair dealing”— is, like its Canadian counterpart, a creature of statute.
“The fair dealing exception in Australia is limited to the purpose-based exceptions listed in the Copyright Act,” says Katrina Crooks, the Sydney-based Principal and Head of Spruson & Ferguson Lawyers, a member of the IPH network. “If a use doesn’t fall within a listed purpose, fair dealing simply does not apply, regardless of fairness.”
The exhaustive list includes research and study, criticism or review, parody or satire, news reporting, and legal advice.
A comparative analysis
While the Australian list has more categories than Canada, Australian courts have treated fair dealing as a simple statutory defence to allegations of infringement. By contrast, Canadian courts treat fair dealing as a “user right” susceptible to a “large and liberal” interpretation. And although US courts also treat fair use as an exception that provides a defence to infringement claims as opposed to a standalone users’ right, the American universe of exceptions is open-ended, so any use that meets the “fairness” criterion could qualify.
The upshot is that Australian “fair dealing” doctrine is far less flexible than its Canadian counterpart and even more constrained when compared to US-style fair use.
But the jurisprudence is relatively sparse.
“There have not been many Australian cases considering the fair dealing exceptions. Given their limited application, however, the cases also draw on English case law dealing with the equivalent doctrine,” Crooks says. “The outcomes in the cases indicate a fact specific approach.”
What’s “fair” in Australia?
Should a dealing fall within a recognized exception, Australian courts’ criteria for fairness are roughly similar to those used by courts in Canada and the US. The key factors in all three jurisdictions include the dealing’s purpose and character, the nature of the work, the effect of the dealing on the market for or value of the work, and the quantity and qualitative importance of what was taken. Australia is alone, however, in considering the possibility of obtaining the work commercially within a reasonable time as a factor in the fairness evaluation.
Similarly to Canada, Australia has not developed an independent “transformative use” concept like that recognized in the US, and in one case the judge expressed the need for caution in drawing on United States law. Transformative use considerations can, however, influence the analysis of the dealing’s purpose, character, and effect on the work.
Despite the differences in assessing fairness, all three jurisdictions take a holistic approach to fairness where no single factor is determinative. While the key questions posed may be worded differently, the ultimate issue for Australian, Canadian, and US courts alike is whether the dealing or use is fair overall. Outcomes may differ, however, given the disparate legal philosophies behind the respective doctrines.
Prospects for change
Going forward, it’s not likely that Australia will expand its fair dealing doctrine in the short term.
“The Australian Law Commission and several subsequent inquiries have considered proposals for a broader regime over the years, but nothing has happened,” Crooks says.
Most recently, the government made clear that it would not adopt the Productivity Commission’s interim proposal to introduce a text and data mining exception that could potentially allow AI companies some latitude to use copyrighted content to train AI models. The Productivity Commission then resiled from the suggestion in its final report, proposing a ‘watch and wait’ approach to the impact of AI on copyright in Australia.
“The government has shown no inclination to adopt a broader fair use approach, so I don’t think we’re going to see change anytime soon,” Crooks says.
Julius Melnitzer is a Toronto-based writer who focuses on law, legal affairs, and the business of law. Follow him on LegalWriter.net or email him at julius@legalwriter.net.