Thursday 13 February 2014

The Australian Law Reform Commission officially recommends adoption of fair use

The long-awaited report by the Australian Law Reform Commission into the adequacy of Australia's copyright exceptions has finally landed! After more than two years work, over 1000 submissions and over 100 consultations with stakeholders, the full 478 page report is available here. Those who aren't quite so copy-keen might dip into the summary here.

We are still digesting the full implications, but the centrepiece is the recommendation that Australia introduce a flexible 'fair use' style exception. After considering reams of evidence as to the pros and cons of such an exception, the Commission recommends fair use as a way of encouraging public interest and transformative uses, as well as innovation, while respecting authors and rightholders. 

Under the proposed framework, determining whether a use is 'fair' requires the balancing of the same four factors as those that underpin the US fair use doctrine, ie:
  1. the purpose and character of the use;
  2. the nature of the copyright material;
  3. the amount and substantiality of the part used; and
  4. the effect of the use upon the potential market for, or value of, the copyright material.
A more extensive (non-exhaustive) list of illustrative purposes than appears in the US statute is also recommended for inclusion. It covers:
  1. research or study;
  2. criticism or review;
  3. parody or satire;
  4. reporting news;
  5. professional advice;
  6. quotation;
  7. non-commercial private use;
  8. incidental or technical use;
  9. library or archive use;
  10. education; and
  11. access for people with disability.
The new exception would be accompanied by repeal of a number of the existing purpose based exceptions, including all varieties of fair dealing.

If the recommendation to implement fair use is not adopted by the legislature, the ALRC has recommended that fair dealing be amended to cover a wider range of purposes, namely the illustrative purposes set out above.

However, Aussies shouldn't rush out to exercise their fair use rights to forward emails, quote their favourite authors, back-up their legitimately purchased content, or start a search engine. In tabling the report Attorney-General George Brandis described the proposal to implement fair use as 'controversial', and stated that, 'in considering the recommendations, we will be particularly concerned to ensure and we will approach the consideration of the report with the view that no prejudice be caused to the interests of rights holders and creators' (as reported in ZDnet here). That doesn't sound as if legislation is likely to follow any time soon.

We'll keep you posted about the Government's full response to the report once it becomes available.


Peter Lawton said...

What always throws me is the lack of clarity about who owns the copyright (in the case of parodies) and the continued obligation to pay for the use. Fair use does not mean free use.

john r walker said...

The Ministers comments struck me as deliberately lukewarm, fair enough given the complexity of copyright law and the variety of interest groups involved.

The ALRC report also contains a alternative recommendation if 'fair use' is too hard, and that is to improve and update the existing fair dealing provisions.

The report also makes some recommendations re orphan works along the lines that, provided a diligent search has been done, remedies for accidental infringement be limited.