What’s Fair Use, and does it apply in NZ?

Short answer – no, Fair Use does not apply in New Zealand. “Fair Use” is an American term with an American application. It’s an often-used legal defence mounted by people accused of infringing on someone else’s copyright.

In contrast, New Zealand uses “Fair Dealing,” which is a narrowly defined set of privileges that a user can legally exercise, without the permission of the copyright owner.

In the USA, a party can justify using your copyrighted material for the purposes of criticism, comment (including satire,) news reporting, teaching, and research. But there’s no bright-line test for this, and every situation has to be taken on a case-by-case basis. Determining “Fair Use” is subject to examining the nature, purpose, amount, substantiality and the effect of the use on the potential market and value of the original.

In contrast, New Zealand's “Fair Dealing,” permits a party to use your copyrighted material, without your permission, for the purposes of research, private study, criticism, review and news reporting. Determining “fair dealing” requires similar considerations: nature, purpose, amount, substantiality, effect of the use on the potential market and value of the original, and availability.

So, while Fair Dealing in New Zealand specifically outlines permitted uses of copyrighted material, Fair Use in the USA uses a set of principles to determine whether an unpermitted use is “Fair.” The terms are similar, but reflect two different decision making frameworks for determining permissible exceptions to the rights of a copyright owner, under copyright law.

In New Zealand, it’s “here’s what you can do without needing express permission;” in the USA, it’s “if you use it, and we sue you, you’d better be able to justify it.”

Read more here for information about Fair Dealing in New Zealand

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Written by Karen Workman, Kaiwhakahaere Whakapa | Creative Rights Educator

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