“Adopt fair use” – The Australian Law Reform Commission tells the Australian government!

Post By Ms. Megan Rae Blakely (PhD Candidate, University of Glasgow) and
Dr Sukhpreet Singh (R&D Manager, CREATe)

Fair Use Logo by Odinn 2007 CC-BY-SA

Fair Use Logo by Odinn 2007 CC-BY-SA

The Australian Law Reform Commission (ALRC) recently published a report that engages with the suitability of ‘fair use’ copyright exceptions in Australian law. Based upon more than 18 months of work and over 1,000 submissions and consultations with stakeholders, the report strongly recommends a more flexible and adaptive copyright framework for Australia. Any copyright flexibility legislation must still comply with the minimum rights laid out in the Berne Convention. The Berne Convention provides a three-step test to determine if a statutory reform is compliant; all member states must confine their limitations and exceptions to exclusive rights to 1) certain special cases which 2) do not conflict with a normal exploitation of the work and 3) do not unreasonably prejudice the legitimate interests of the right holder.

While still adhering to these minimum Berne Convention rights, the ALRC report does justice to its commissioning organization, i.e., a law ‘reform’ commission by recommending introduction of ‘fair use’ principles in Australian copyright law, so that new technological developments and commercial practices in the digital world do not have to seek constant recourse to legislative change, an instrument that moves at a glacial pace around the world. The report authors reckon that ‘fair use’ will promote innovation and enable a technologically sound market-based response to market demands and presumably help boost Australia’s global competitiveness.

Based on similar reasoning, many countries have recently codified various flexible use practices, modeled after ‘fair use’ in the United States, moving towards a broader framework than the UK fair dealing model. Both fair use and fair dealing operate as affirmative defences to copyright infringement; however, fair dealing only allows limited unlicenced use via an exhaustive list of purposes, including research and private study. Further, the fair dealing does not apply to photos, sound recordings, and film broadcasts and does currently not allow any fair dealing exception for parody and satire. Notably, the UK is also seeking to expand upon fair dealing. The 2011 Hargreaves Report made recommendations to reform UK copyright law to increase global competitiveness and promote innovation, resulting in draft legislation including modernizations of copyright use exceptions (see CREATe WPs herehere and policy responses here).

In the spirit of moving towards a more flexible use copyright code with balanced factors rather than exhaustive lists, Australia would follow leaders in global intellectual property production in adopting such fair use policies should the ALRC recommendations be implemented. Overall, the ALRC recommendations seek to enhance access to cultural material, without undermining the incentives, following a path similar to the US-style fair use reforms found in SingaporeIreland, and Israel. The recommendations have retained important safeguards to ensure that ‘fair’ or ‘unlicensed use’ pertains to a high standard of public perception of fairness and does not in any way undermine the basic objectives for which copyright was created, i.e., to incentive the creation of original literary and artistic works. Thus, fair or unlicensed use of copyrighted material may be allowed, as per the recommendations, if it follows the following general principles:

  • serving an important public purpose,
  • stimulating the creation of new works and the use of existing works for new purposes, and,
  • not harming the rights holders’ markets, thereby ensuring that exceptions do not undermine the crucial incentive to create and publish copyrighted material.

Although the above may be interpreted in a variety of ways, the report recommends some illustrative purposes for inclusion:

  • access for people with disability,
  • criticism or review,
  • education,
  • incidental or technical use,
  • library or archive use,
  • non-commercial private use,
  • parody or satire,
  • professional advice,
  • quotation,
  • reporting news, and,
  • (most importantly for the academic community) research or study.

What remains to be seen is how many, or if, the recommendations of the ALRC find their way into Australian copyright law. For the time being, though, the Australian government doesn’t seem much convinced. The ALRC report emulates many of the broader U.S. section 107 fair use exceptions, especially due to the inclusion of parody or satire. While fair use exceptions may rightly trigger concerns about the possible impact on creative industries’ contributions to the public good, the safeguards preventing exploitive commercial use that also weigh the nature and substance of the unlicenced copyrighted material seek to limit any such impact. Further, artists and academics are increasingly utilizing alternative copyright structures, such as Creative Commons and open access journals, in a way which still incentivizes creation while allowing limited unlicenced use for specific, noncommercial purposes, indicating copyright flexibility will not prevent original works from contributing to the public good.

An accessible summary of the report is available here while the full report can be downloaded and analysed from here.

The authors would like to thank Prof. Martin Kretschmer (Director, CREATe) for his invaluable inputs in this post.

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