Fair use
Fair Use Review
In 2005, the Australian Government conducted a review on whether the Copyright Act should include a general exception associated with principles of ‘fair use’ or specific exceptions. This would have the effect of facilitating the public’s access to copyright material in the digital environment. The Australian Government made a commitment to examine this issue in its 2004 election policy Strengthening Australian Arts.
In general terms, a ‘fair use’ exception would introduce a general exception or defence to copyright infringement for activities that are determined to be ‘fair’. This would allow people to use or copy copyrighted material for those purposes without needing permission from the copyright owner.
Different interests have varying perspectives about the meaning of ‘fair use’. Individual users may look to private or domestic uses of copyright material that have qualified as a fair use in the United States. Business or institutional users may be interested in uses for a commercial or public purpose.
A fair use exception, based on the model in the United States, would list a number of factors or principles of ‘fairness’ for a court to consider in deciding whether any activity should be an exception to copyright (ie outside the uses that the copyright owner is able to stop). A specific exception would identify a particular activity (eg. time-shifting) that would be an exception to copyright. The main difference between the two approaches is that a fair use exception would be open-ended and flexible while a specific exception would be more certain but confined by its scope.
The Copyright Act currently contains a number of exceptions to copyright known as the ‘fair dealing’ exceptions. The fair dealing exceptions are also based on a concept of fairness but are confined to four specific purposes, such as study criticism and review. The Government is reviewing whether these and other current exceptions are adequate - or whether a new general exception based on ‘fair use’ or new specific exceptions might be appropriate.
The Government released an issues paper outlining the nature of copyright under the Copyright Act, the nature of and rationale for exceptions and the impact of relevant international obligations. It then discusses fair dealing exceptions under the Act and proposals for reform made in reports by the Copyright Law Review Committee (CLRC) and the Joint Standing Committee on Treaties (JSCOT). ‘Fair use’ under US copyright law – the focus of the review – is discussed, along with comparable exceptions under European Community (EC) directives and under the national laws of the UK, New Zealand and Canada. The use of technological protection measures and of new forms of consumer contracts to restrict access to exceptions is referred to. The paper concludes by raising a number of possible options for reform. A table of the existing exceptions and statutory licences under the Copyright Act is an attachment to the paper.
Outcome
After receiving a number of submissions in response to the issues paper, the Australian Attorney-General has released significant copyright reforms that address ‘fair use’ amongst other things. These reforms are announced in a media release by the Attorney-General in May 2006.