AustraliaCopyright Act 1968 (Cth), Fair Dealing Exceptions and No Text-and-Data-Mining Exception
Copyright Act 1968 (Cth), No. 63, 1968, ss. 10, 40, 41, 41A, 42
In force.
A copyright and text and data mining (TDM) rule binding public and private bodies.
- Obligation class
- TDM
- Audit expectation
- none
What it requires
- A use of a literary, dramatic, musical or artistic work is not infringing if it is a fair dealing for research or study, criticism or review, parody or satire, or reporting news; training an AI model on copyrighted text does not fit any of these purposes as such, and no separate text-and-data-mining exception is available.
These lines are LexLint's reading of the law's text.
If you get it wrong
Criminal exposureYes
Private right of actionYes
Criminal exposure note
Section 132AC(1) makes it an indictable offence to engage in conduct that results in infringement of copyright on a commercial scale with a substantial prejudicial impact on the copyright owner, punishable on conviction by a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both (s. 132AC(2)). Section 132AD makes it an offence to make an infringing copy with the intention of selling it, letting it for hire or obtaining a commercial advantage or profit. The fair dealing exceptions in sections 40 to 42 and the other provisions of Part III operate as limits on infringement, and a dealing that infringes copyright is within these offences only when the commercial-scale or commercial-purpose elements are also met.
Penalty structure
Section 132AC(2) sets the maximum for the indictable offence of commercial-scale infringement that substantially prejudices the copyright owner: a fine of not more than 550 penalty units or imprisonment for not more than 5 years, or both. A corporation may be fined up to 5 times that maximum, 2,750 penalty units, which is the ceiling shown (AUD 1,001,000 at AUD 364 a unit); the maximum for an individual is 550 penalty units (AUD 200,200). Section 132AD(2) sets the same maximum for making an infringing copy with the intention of selling it, letting it for hire or obtaining a commercial advantage or profit, and section 132AK(2) raises the fine to 850 penalty units where the copy was made by converting a work from hard copy or analog form into digital form. Section 132AC(3) makes negligent commercial-scale infringement a summary offence punishable by 120 penalty units or imprisonment for 2 years. A penalty unit is AUD 330 under section 4AA(1) of the Crimes Act 1914, indexed on to AUD 364 for offences committed on or after that date.
- Rule
- Fixed only
- As of
- Currency
- AUD
- Fixed cap
- 1,001,000
Who enforces it
Enforcement body
The owner or exclusive licensee of the copyright, by an action in court under section 115(1); the offences in Part V, Division 5 are punishable on conviction.
Settledness
- As of
- Open questions
- Is a reproduction made to train a machine-learning model a fair dealing "for the purpose of research or study" under section 40(1), given the section 40(2)(d) matter of "the effect of the dealing upon the potential market for, or value of, the work or adaptation"?
- Does a licence for AI training that is on offer count as "the possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price" under section 40(2)(c), so that it weighs against a fair dealing for research or study?
What it makes you log
Logging duty
Sections 40, 41, 41A and 42 state when a fair dealing for research or study, criticism or review, parody or satire, or reporting news does not infringe copyright, and section 10 defines the terms. They are exceptions to infringement and impose no duty to create, keep, produce or review a log or record. The Act has no text-and-data-mining exception in these sections, and none carries a copy-keeping or reservation clause.
- Kind
- None
- As of
What this law does
Sections 40 to 42 permit fair dealing with a literary, dramatic, musical or artistic work for research or study, criticism or review, parody or satire, or reporting news, but Australia has no general text-and-data-mining exception. On the Attorney-General confirmed the Government would not introduce a text-and-data-mining exception, choosing instead to pursue a licensing-based approach for AI training.
Section 10's definition of literary work includes a table or compilation of words, figures or symbols, so a scraped compilation can attract copyright as a literary work if its selection or arrangement involves sufficient independent intellectual effort, but Australia recognises no separate sui generis database right of the kind the European Union has, so a database that is a mere compilation of facts without such effort receives no protection at all. The sections this entry groups came into force on different days.
How courts have read itPremium data
Our analysis of this law draws on 2 court rulings.
What each ruling held, what it means for an app, and whether it still stands are premium data, in the Plus, Pro and Enterprise plans.
When LexLint raises it
When your app profile says your app crawls the web or trains models.
Back to the example · Lint your app
Page updated .