Fair Dealing v. Fair Use ➲ Where the website is hosted matters

Australian Capital Territory
New South Wales
Northern Territory
South Australia
Western Australia
All Australian States + Territories
U.S. Federal Law

Increasingly, Australian websites are hosted in the USA 

Just because a web domain is Australian (for example: *.com.au) does not automatically mean that the website content is hosted on an Australian hosting service.

Increasingly, Australian websites are hosted by Internet Service Providers (ISP) from overseas which are often based in the USA.

Q: Does where the website is hosted makes a difference?

A: Yes.

The Pirate Publisher: A Satirical Commentary on the state of copyright laws (pre 1911 treaty)

The Pirate Publisher—An International Burlesque that has the Longest Run on Record by Joseph Ferdinand Keppler, published as a centrefold in Puck, v. 18, no. 468 (1886 February 24).

A commentary on the state of copyright laws that, prior to a 1911 treaty, generally offered no protection to foreign authors and works.

In the cartoon, hordes of German, Norwegian, French, English, and American authors surround a publisher who republishes their newly-created works without attribution or royalties in a foreign country, as international law then allowed.

Of note is W. S. Gilbert, fifth from the right in the front row, as the many unauthorised or "pirate" productions of H.M.S. Pinafore caused him and Arthur Sullivan to première The Pirates of Penzance in America, to at least gain the initial profits there before anyone else could exploit it, and the title and subject of The Pirates of Penzance is sometimes - although somewhat dubiously in my opinion - considered to partially be a reference to the issue of pirate productions of their works. Other authors shown include Mark Twain, Tennyson, Robert Browning, F. C. Burnand, Émile Zola, Jules Verne, Victorien Sardou, Wilkie Collins, Oliver Wendell Holmes, Sr., as well as many others.

Source: From Wikimedia Commons, the free media repository.

Australian Hosted Website "Fair Dealing" Defence v. USA Hosted Website "Fair Use" Defence

It appears that the state of copyright laws have generally improved to offer more protection to Copyright Owners since 1911.

However, as an example: Due to the 'Fair Dealing" v. "Fair Use" distinction between Australian and the USA, Australian Copyright Material today still may be used + hosted on USA ISP's in situations or for purposes which would breach Australian Copyright law.

See this article Fair Use v. Fair Dealing: How Australian Copyright Law Differs to learn more about the differences between the two concepts.

The following examples have been extracted from the above article to help explain what you can do with "Fair Use" on a US Hosted website that you cannot do with "Fair Dealing" on an Australian Hosted website:

adapting to new technologies

Fair Use is flexible enough to adapt to change.

"For example, in the US, Fair Use made it legal to use a VCR to record television at home in 1984.
In Australia, this wasn’t legal until parliament created a specific exception in 2006 – just about the time VCRs became obsolete."

artistic use

In Australia, it’s legal to use copyright material to create a parody or a critique, but not for purely artistic purposes.

"For example, Australian law makes it largely unlawful for a collage artist to reuse existing copyright material to create something new."

uses that document our experiences

"Media forms a big part of our lives, and when we share our daily experiences, we will often include copyright material in some way.
Without Fair Use, even capturing a poster on a wall behind you when you take a selfie could infringe copyright.
In a famous example, Stephanie Lenz originally had an adorable 29-second clip of her baby dancing to a Prince song removed from YouTube, due to her use of the song.
Stephanie Lenz was able to have the video reposted under US Fair Use law – but an Australian wouldn’t have that right."

technical and non-consumptive uses

"The internet we love today is built on Fair Use.
When search engines crawl the web, making a copy of every page they can in order to help us find relevant information, they’re relying on Fair Use.
Under Australian law, even forwarding an email without permission could be an infringement of copyright."


This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.