History of fair use proposals in Australia
|Sui generis rights|
Higher category: Property and Property law
The history of fair-use proposals in Australia is a series of Australian government enquiries into the introduction of a "flexible and open" fair use system into Australian copyright law. Between 1998 and 2016, eight enquiries examined, and in most cases recommended, the introduction of fair use in place of the current "fair dealing" system which allows copyrighted material to be used only if it meets one of four specific purposes as set out in the Act.
A change to a fair-use system would allow copyright material to be used without the copyright owner's consent in any circumstances where the use is fair, as judged against four "fairness factors". A re-user need only address the four fairness factors proposed by the Australian Law Reform Commission and Productivity Commission, which are:
- The purpose and character of the use;
- The nature of the copyright material;
- The amount and substantiality of the part used; and
- The effect of the use on the potential market for, or value of, the copyright material.
Proponents of the proposed fair-use system describe it as a system which would "...maximise the net benefit to the community", reinforce that "user interests should also be recognised by Australia’s copyright system", and that without it, "...the Australian copyright system will always have gaps, always be trying to catch up with new technologies and behaviours." They further argue that fair dealing is "too limited and prescriptive in nature". Similar fair use systems are also used in countries including Israel, Singapore, South Korea, and Poland.
Opponents of the proposed fair-use system say that it would introduce "significant and unnecessary uncertainty into Australian law” and that it is "an American legal principle that has enabled large enterprises in the US to use copyright material for free". The Motion Picture Association of America considers its potential introduction of in Australia to be a notable "foreign trade barrier" despite proactively supporting the existence of the fair use doctrine in the USA through legal action as "...our members rely on the fair use doctrine every day when producing their movies and television shows".
The copyright exception system – either fair use or fair dealing – is unrelated to parallel import restrictions, or the duration of the copyright term, although the three are often conflated in public debates.
Current approach – "fair dealing"
Currently (2017) Australia has a purpose-based approach to exceptions, called "fair dealing". The system contains an explicit list of "technical bespoke copyright exceptions" which means the use of copyrighted material without the specific consent of the copyright-holder is only allowed if the proposed use is one of a number of specific purposes listed in the Australian Copyright Act. The primary purpose-based exceptions are the fair dealing exceptions for:
A number of specific exceptions cover uses such as:
Other than in Australia, in 2017 "Fair Dealing" is used in countries including the UK, New Zealand and Canada.
From 1998 to 2017 there have been eight Australian government inquiries which have considered the question of whether fair use should be adopted in Australia. Six reviews have recommended Australia adopt a "fair use" model of copyright exceptions: two inquiries specifically into the Copyright Act (1998, 2014); and four broader reviews (both 2004, 2013, 2016). One review (2000) recommended against the introduction of fair use and another (2005) issued no final report.
|1998||Copyright Law Review Committee||Simplification of the Copyright Act
Part 1: Exceptions to the Exclusive Rights of Copyright Owners
|2000||Intellectual Property and Competition Review Committee||Review of Intellectual Property Legislation under the Competition
|2004||Joint Standing Committee on Treaties (JSCOT)||The Australia – United States Free Trade Agreement
Chapter 16: Intellectual Property Rights and Electronic Commerce
|2004||Senate Select Committee on the Free Trade Agreement between Australia and the United States of America||Final Report on the Free Trade Agreement between Australia and the United States of America.
Chapter 3: Intellectual Property
|2005||Australian Government Attorney-General's Department||fair use and Other Copyright Exceptions: An Examination of Fair Use, Fair Dealing and Other Exceptions in the Digital Age, Issues Paper||no report|
|2013||House of Representatives Standing Committee on Infrastructure and Communications||At what cost? IT pricing and the Australia Tax
Chapter 4: Copyright, circumvention, competition, and remedies
|2014||Australian Law Reform Commission (ALRC)||Copyright and the Digital Economy
Chapter 4: The case for fair use
|2016||Productivity Commission (PC)||Intellectual Property Arrangements
Chapter 6: Fair use or fair dealing – what is fair for Australia?
Both reports from 2004 were in response to the signing of the Australia–United States Free Trade Agreement (AUSFTA). The AUSFTA's Intellectual Property chapter purported to align Australian copyright law with that of the United States. In doing so, it introduced a number of measures that extended the rights of copyright holders, or as some described them: "the harsher measures of the Digital Millennium Copyright Act 1998 (US) and the Sonny Bono Copyright Extension Act 1998 (US)". However, Australia did not simultaneously adopt "balancing" features of the United States law which provided rights to copyright users, "such as the higher standard of originality or the open-ended fair use defence of United States law". leaving some media reports to wonder "Why did we gain the restrictions of US copyright law but not the rights?"
In response, the two Parliamentary committees tasked with reviewing the AUSFTA implementation recommended that Australia should introduce fair use, "to counter the effects of the extension of copyright protection". They noted that "the application of a broad, open-ended 'fair use' doctrine, similar to that in the United States, may ... assist in legitimising several commonplace actions undertaken regularly by Australians perhaps unaware that they are infringing copyright." Although the Committees' recommendations on fair use were not adopted, new exceptions were introduced in the Copyright Amendment Act 2006 to cover some of these "commonplace actions" such as time shifting, format shifting, and a new fair dealing for "parody and satire". In introducing the bill to Parliament, the Attorney-General Philip Ruddock stated that "This will provide some of the benefits that the fair use doctrine provides in the United States under their law."
While noting that "Nothing in the AUSFTA would prevent Australia from implementing legislation to raise the level of originality and to introduce a 'fair use' defence to copyright infringement", the committee understood that IP collecting societies (including Viscopy, CAL, and ARIA) "oppose any move to adopt a 'fair use' defence" on the basis that the introduction of a foreign legal concept would "have many additional implications for Australian law", was "an unjustified abrogation of the rights of copyright owners" and would "significantly increase enforcement difficulties".
In 2012 the Attorney-General of Australia, Hon. Nicola Roxon referred "the matter of whether the exceptions and statutory licences in the Copyright Act 1968, are adequate and appropriate in the digital environment" to the Australian Law Reform Commission (ALRC) for investigation. After an 18-month review, it recommended the introduction of fair use as it "would streamline our current hotch-potch copyright laws, which aren't designed to cope with the rapid pace of technological change." Alongside the broad fair use exception, the ALRC proposed the inclusion of a "non-exhaustive list of illustrative uses or purposes that may qualify as fair use" arging that this, and that the fact that fair use has been in operation in the USA – the world's largest cultural-exporter – for 35 years, would alleviate concerns that Fair use would introduce too much uncertainty for copyright hoders. The Australian University sector, in particular, expressed its support for this proposal.
[Fair use] facilitates the public interest in accessing material, encouraging new productive uses, and stimulating competition and innovation. Fair use can be applied to a greater range of new technologies and uses than Australia’s existing exceptions. A technology-neutral open standard such as fair use has the agility to respond to future and unanticipated technologies and business and consumer practices. With fair use, businesses and consumers will develop an understanding of what sort of uses are fair and therefore permissible, and will not need to wait for the legislature to determine the appropriate scope of copyright exceptions.— Copyright and the Digital Economy, Australian Law Reform Commission
Separate but parallel to the review by the ALRC, in 2013 Greens Senator Scott Ludlam introduced a "catch-all" fair use bill to parliament. As it was not a government bill, and did not proceed to a vote, it lapsed in November of that year on the day of the installation of the new parliament following the 2013 federal election. Consumer affairs organisation Choice also ran a campaign in support of the ALRC recommendations.
In 2015, the Productivity Commission (PC) was tasked by the then Treasurer, Joe Hockey, with investigating whether the "current [Australian Intellectual Property] arrangements provide an appropriate balance between access to ideas and products, and encouraging innovation, investment and the production of creative works". Its conclusions, published in December 2016, "reignited the copyright wars" in Australia by recommending, among other things, the introduction of fair use and the removal of parallel import restrictions (PIRs), also referred to as "territorial copyright", on books. A formal response from the government to the report is expected in mid-2017.
In the public debate, the PC's fair use recommendation has been conflated with a number of other aspects of the report. These include the parallel importation recommendation and references to the potential benefits of a significantly shorter copyright term of "15–25 years". Although the PC did not actually recommend such a reduction in either its draft or final reports, and acknowledged that it was not possible under Australia's international obligations, a number of celebrated Australian authors, including Jackie French and Anna Funder, argued publicly against a reduction in the duration of copyright in Australia. Tom Keneally, speaking at the Australian book industry awards in May 2016, stated "The federal government proposes to do something neither the Brits nor Americans propose to do [to] their writers: to slice Australian authors’ copyright to 15–25 years after publication." This prompted the relevant Minister, Mitch Fifield, to reject these claims stating that a reduction of the copyright term "is not something the Government has considered, proposed or intends to do", and moreover that due to its involvement in a range of free trade agreements, Australia "...has no unilateral capacity to alter copyright terms."  
The PC's fair use recommendation has, however, also been strongly objected to in its own rights. One major criticism raised by rights holder representatives is concerns about its potential to reduce royalties paid by Australian schools. Under the current model, a statutory licence is negotiated, resulting in a payment administered by Copyright Agency Ltd (CAL) that "equates to about $17 per school student per year or about $30 per tertiary student". Without this payment to authors CAL argues that "there would be less Australian content on our screens, on our bookshelves and in our schools and universities." On the other hand, the National Copyright Unit representing schools and TAFEs contend that a large portion of this payment relates either to material the author of which cannot be identified, or for materials for which royalty payments are not intended or appropriate. For example, in 2011 they noted that "openly available webpages made up 81.4% of the total web and non web digital materials that were paid for," (including Google Maps and dictionary.com) which resulted in the payment of millions of dollars for activities that would in other countries be considered as not appropriate for remuneration. In May 2017 Wikipedia displayed banners to Australian readers in support of the Productivity Commission's recommendation.
In August 2017 the government published its official response to the PC recommendations and, with regards to the specific recommendation to introduce Fair Use, stated that it "notes this recommendation and will further consult" in early 2018. The government's response was "welcomed" by organisations supporting and opposing the recommendation.
Copyright Agency fighting fund
In April 2017 it was revealed that CAL had "been diverting payments" valued at $15.5 million AUD – obtained between 2013 and 2016 from orphan works under the educational licensing scheme – to a "fighting fund", which it called the Future Fund, to lobby against fair use, instead of distributing it to authors. In acknowledging the existence of the fund, CAL stated it would be used to "...run any legal cases that would arise as a result of changes in legislation, and cover operating costs while the law remained unsettled and where there had been a reduction in licence fees". Universities Australia argued it was "ironic" to fund a campaign against fair use with money obtained through orphan works: “This just goes to show that Australian authors wouldn’t be harmed if universities and schools could rely on a fair-use exception for copying orphan works...If Australia had a fair-use exception, this money would never have been collected in the first place.” Kim Williams, chair of CAL, responded that “The reason for provisioning this money is simple: any board that does not prudently provision for the risk of a calamitous regulatory change … would be guilty of extreme negligence.”
Over the course of the various public inquiries, many example use-cases for where fair use would be applicable have been proposed. In some circumstances (such as time shifting) the use-case has been incorporated as a new exception under fair dealing, but in most instances the situation remains unchanged. Some most commonly raised examples of currently-illegal or paid-for activities which would fall under fair use include:
- A search engine publishing thumbnail images in search results
- An author quoting a number of unpublished letters in a biography
- A teacher recording a radio/TV news bulletin for use in class
- A Local Council providing access to Development Application (DA) plans to local residents, which it must do to comply with public access to information law
- A classroom viewing a publicly available website.
- Australian Law Reform Commission (ALRC) (13 February 2014). "Copyright and the Digital Economy: Chapter 5 The fair use exception". Australian Law Reform Commission.
- Bowrey, Kathy (8 June 2016). "Our public institutions need fair use laws". The Sydney Morning Herald. Retrieved 9 March 2017.
- "47 Organisations Agree Fair Use is Critical for Australia". Australian Digital Alliance. 13 February 2017. Retrieved 7 March 2017.
- "Australia's libraries and archives support fair use". Australian Libraries Copyright Committee. 21 December 2016. Retrieved 7 March 2017.
- "The ALRC report on Copyright and the Digital Economy recommends broad fair use exception". www.claytonutz.com. Clayton Utz. Retrieved 18 April 2017.
- Andy (5 December 2016). "Aussie Celebrities Join Campaign to Oppose Fair Use". TorrentFreak. Retrieved 18 April 2017.
- "Fair Use". Copyright Agency Ltd. Retrieved 7 March 2017.
- "MPAA Comments Regarding the 2018 National Trade Estimate Report on Foreign Trade Barriers" (PDF). Motion Picture Association of America. 2017-10-25. p. 13. Retrieved 2018-01-19.
- "MPAA Warns Australia Not to 'Mess' With Fair Use and Geo-Blocking - TorrentFreak". TorrentFreak. 2017-11-07. Retrieved 2018-01-19.
- Sheffner, Ben (2013-10-23). "MPAA and Fair Use: A Quick History". MPAA.org. MPAA. Retrieved 2018-01-19.
- "COPYRIGHT ACT 1968 – SECT 41A Fair dealing for purpose of parody or satire". www.austlii.edu.au. Retrieved 18 April 2017.
- "COPYRIGHT ACT 1968 – Section 40 Fair dealing for purpose of research or study". www.austlii.edu.au. Retrieved 18 April 2017.
- "COPYRIGHT ACT 1968 – SECT 41 Fair dealing for purpose of criticism or review". www.austlii.edu.au. Retrieved 18 April 2017.
- "COPYRIGHT ACT 1968 – SECT 42 Fair dealing for purpose of reporting news". www.austlii.edu.au. Retrieved 18 April 2017.
- "COPYRIGHT ACT 1968 – SECT 47D Reproducing computer programs to make interoperable products". www.austlii.edu.au. Retrieved 18 April 2017.
- "COPYRIGHT ACT 1968 – SECT 200AB Use of works and other subject-matter for certain purposes". www.austlii.edu.au. Retrieved 18 April 2017.
- Martin, Peter (15 December 2016). "Our copyright laws are holding us back, and there's a way out". The Sydney Morning Herald. Archived from the original on 14 December 2016. Retrieved 6 February 2017.
- "Productivity Commission Draft IP Report – the breakdown". Australian Digital Alliance. 16 June 2016. Retrieved 7 March 2017.
- "Reviews that have considered fair use". www.alrc.gov.au. Australian Law Reform Commission. 4 June 2013. Retrieved 8 March 2017.
- Dr Rimmer, quoted at §3.94, in "Chapter 3 – Intellectual Property; Final Report on the Free Trade Agreement between Australia and the United States of America". Parliament of Australia. 5 August 2004. Retrieved 7 March 2017.
- Turner, Adam (19 February 2014). "Why deny US-style Fair Use copyright laws to Australians?". The Sydney Morning Herald. Retrieved 18 April 2017.
- Recommendation 17, in "Ch 16. Intellectual Property Rights and Electronic Commerce". AustLII. Joint Standing Committee on Treaties. June 2004. Retrieved 7 March 2017.
- §3.117, in "Chapter 3 – Intellectual Property; Final Report on the Free Trade Agreement between Australia and the United States of America". Parliament of Australia. 5 August 2004. Retrieved 7 March 2017.
- "COPYRIGHT AMENDMENT ACT 2006 (NO. 158, 2006)". Austlii.edu.au. Retrieved 9 December 2012.
- "COPYRIGHT ACT 1968 – SECT 111 Recording broadcasts for replaying at more convenient time". Austlii.edu.au. Retrieved 9 December 2012.
- "COPYRIGHT ACT 1968 – SECT 110AA Copying cinematograph film in different format for private use". Austlii.edu.au. Retrieved 9 December 2012.
- "COPYRIGHT AMENDMENT BILL 2006 : Second Reading". parlinfo.aph.gov.au. 19 October 2006. Retrieved 8 March 2017.
- §3.105, in Chapter 3, Final Report of the FTA
- §3.111–113, in Chapter 3, Final Report of the FTA
- §3.105, in Chapter 3, Final Report of the FTA
- "Terms of Reference". Australian Law Reform Commission. Retrieved 16 April 2017.
- Trounson, Andrew (16 February 2014). "Unis back 'fair use' copyright". The Australian. Retrieved 18 April 2017.
- Final Report p22. Quoted in Rimmer, Matthew. "The Fight for Fair Use in Australia: Copyright Law in an Age of Cloud Computing". Medium.com. Retrieved 8 March 2017.
- LeMay, Renai (28 June 2013). "Ludlam reveals catch-all "fair use" copyright bill". Delimiter. Retrieved 8 March 2017.
- King & Wood Mallesons – Anna Spies. "Giving copyright a fair go – the Greens' way | Lexology". Retrieved 8 March 2017.
- Commonwealth Parliament. "Copyright Legislation Amendment (Fair Go for Fair Use) Bill 2013". Retrieved 8 March 2017.
- LeMay, Renai (2014-02-14). "Digital rights bodies back ALRC's Fair Use call". Delimiter. Retrieved 2017-06-11.
- "Intellectual Property Arrangements". Productivity Commission; Commonwealth of Australia. Retrieved 7 March 2017.
- Suzor, Nicholas; Parvez, Shareen (21 December 2016). "Productivity Commission re-ignites copyright wars by recommending 'fair use'". The Conversation. Retrieved 7 March 2017.
- Steger, Jason (29 April 2016). "Writers and publishers voice their opposition to new copyright proposals". The Sydney Morning Herald. Retrieved 7 March 2017.
- "Report on Australia's intellectual property system released for consultation". www.greghunt.com.au. 20 December 2016. Retrieved 4 May 2017.
- "Intellectual Property Arrangements Draft Report" (PDF). Productivity Commission; Commonwealth of Australia. p. 117. Retrieved 8 March 2017.
- Price, Jenna (19 December 2016). "Copyright is worth defending". The Sydney Morning Herald. Retrieved 7 March 2017.
- Harmon, Steph; Clark, Lucy (19 May 2016). "Magda Szubanski may leave Australia if changes to book industry go ahead". The Guardian. ISSN 0261-3077. Retrieved 7 March 2017.
- Victoria, Mitch Fifield, Liberal Senator for. "Conjecture on copyright changes unfounded > Mitch Fifield, Liberal Senator for Victoria". www.mitchfifield.com. Retrieved 7 March 2017.
- Anderson, Porter (20 June 2016). "Australia's Debate on Book Imports, Copyright and Fair Use". Publishing Perspectives. Retrieved 7 March 2017.
- Thomsen, Simon (24 May 2016). "The Turnbull government just killed off the copyright changes that were freaking out authors". Business Insider Australia. Retrieved 7 March 2017.
- "Yes, Australian schools do pay to use free online content". Smartcopying. National Copyright Unit on behalf of the Copyright Advisory Groups (Schools and TAFEs). Retrieved 7 March 2017.
- Martin, Peter (2017-05-21). "Fair Use: Wikipedia targets Australians in bid to change the law". The Sydney Morning Herald. Retrieved 2017-06-11.
- Australian Government Response to the Productivity Commission Inquiry into Intellectual Property Arrangements (PDF). Department of Industry, Innovation and Science. 2017. p. 7.
- "Government moves to modernise copyright for all Australians | Australian Digital Alliance". digital.org.au. Retrieved 2017-08-30.
- "Copyright Agency welcomes Government's response on copyright - Copyright Agency". Copyright Agency. 2017-08-25. Retrieved 2017-08-30.
- Martin, Peter (24 April 2017). "Copyright Agency diverts funds meant for authors to $15m fighting fund". The Sydney Morning Herald. Retrieved 24 April 2017.
- Moody, Glyn (2017-04-27). "Australia's Copyright Agency Keeps $11 Million Meant For Authors, Uses It To Fight Introduction Of Fair Use". Techdirt. Retrieved 2017-05-30.
- "A quick update on copyright - Copyright Agency". Copyright Agency. 2017-05-10. Retrieved 2018-01-20.
- Hare, Julie (2017-05-27). "Copyright Agency uses lost dues to fight fair-use laws". www.theaustralian.com.au. The Australian. Retrieved 2017-05-30. (Subscription required (help)).
- "Fact Sheet: Illustrative United States fair uses of copyright works that require a licence in Australia" (PDF). Productivity Commission.
- "Copyright and compliance with the GIPA Act". www.ipc.nsw.gov.au. NSW Information and Privacy Commission. 15 October 2014. Retrieved 18 April 2017.