A staff member or student (or any other individual) may copy a literary, dramatic, musical or artistic work, or an audio-visual item without obtaining permission for the purposes of criticism or review under the "fair dealing" provisions of the Copyright Act (the Act). There are some limitations and conditions and these are discussed below.
The Act does not provide a defintion of criticism or review. There is also no guidance within the Act as to the factors which should be considered in determining if a dealing is "fair". However, a number of cases point to the following factors when consdering whether a particular use of copyright material is a fair dealing for criticism and review.
Criticism involves the evaluation or estimation of the qualities or character of a work or audio-visual item.
Criticism or review may relate to the work being used or to other material. For example you may copy an extract from one book for the criticism or review of another.
The criticism may be of the underlying ideas in the material or the material itself.
Criticisms and reviews do not need to be balanced and can be humorous.
The purpose of the criticism or review must be genuine. i.e. ulterior motives such as commercial gain and anti-competitive behaviour may cancel out the defence.
There must be sufficient acknowledgment
There must be sufficient acknowledgement of the original item for the purposes of criticism or review. The Act provides that "sufficient acknowledgement" in relation to a literary, dramatic, musical or artisticwork, includes "an acknowledgment identifying the work by its title or other description". Author names must also be acknowledged, unless they have previously agreed or directed that no acknowledgment is to be made.
Case law further provides that where an author makes a claim or provides a position it should be recognised.
Sufficent acknowledgement in relation to the use of audio-visual items for criticism and review is not defined within the Act.