Australia may adopt fair use exceptions

The Australian Law Reform Commission (ALRC) released a discussion paper “Copyright and the Digital Economy” yesterday exploring whether the exceptions and statutory licences in the Copyright Act need to be updated.

One of the central proposals is to adopt a “broad” and “flexible” fair use exception that would examine each case according to four factors: the nature of the use, the nature of the copyrighted work, the amount of the work used and the impact on the market for the copyrighted material. These factors are identical to those found in most jurisdictions that recognise fair use, such as the United States.

Australian law already provides fair dealing exemptions that delineate specific exceptions from copyright infringement such as research, criticism or satire. The proposed fair use exception would be broader and based on the principles outlined in the four factors rather than specifically illustrated situations.

One advantage of fair use touted by the ALRC is that a principles-based exception can better adapt to changing technologies. The report cites a submission from telecommunications company Telstra arguing that “the current exceptions are generally created in response to existing technologies, economies and circumstances. As a result, they tend to have a narrow ‘patchwork’ application to circumstances existing at the time the exception is introduced".

Unsurprisingly, copyright disputes turning on pre-internet legal distinctions have become increasingly common. In the Aereo case in the United States, the defendant prevailed largely because it used thousands of antennae array to record over-the-air broadcasts for users, rather than one antenna to make a single recording for multiple users. Similarly, the AFL vs Optus decision in Australia turned on whether a provider of a cloud-based digital video recording service is the maker of copies of copyrighted material, as opposed to the end users.

As a result, a number of other jurisdictions are also looking into comprehensive updates of their copyright laws, such as the Hargreaves Report in the UK. Interestingly, that report also considered adopting a US-style fair use regime, but declined to do so because of “genuine legal doubts about the viability of a US case law based legal mechanism in a European context.”

The full paper can be found here. Submissions will be accepted until July 31 at the ALRC website or at copyright@alrc.gov.au.