Australian copyright law review – alternative to fair use exception, specific exceptions and orphan works

An alternative exception, should fair use not be enacted, is also recommended: a ‘new fair dealing’ exception that consolidates the existing fair dealing exceptions and provides that fair dealings for certain new purposes do not infringe copyright.

This exception is similar to fair use, but crucially, it is confined to a set of prescribed purposes. The purposes listed in the fair use exception are illustrative – examples of types of use that may be fair. The purposes listed in the new fair dealing exception, on the other hand, confine the exception. This exception would only apply when a given use is made for one of the prescribed purposes.

Many of the benefits of fair use would also flow from this new fair dealing exception. Both exceptions are flexible standards, rather than prescriptive rules. They both call for an assessment of the fairness of particular uses of copyright material. In assessing fairness, they both require the same fairness factors to be considered, and therefore they both ask the same important questions when deciding whether an unlicensed use infringes copyright.

Both exceptions encourage the use of copyright material for socially useful purposes, such as criticism and reporting the news; they both promote transformative or productive uses; and both exceptions discourage unlicensed uses that unfairly harm and usurp the markets of rights holders.

Despite the many benefits common to both fair use and fair dealing, a confined fair dealing exception will be less flexible and less suited to the digital age than an open-ended fair use exception. Importantly, with a confined fair dealing exception, many uses that may well be fair will continue to infringe copyright, because the use does not fall into one of the listed categories of use. For such uses, the question of fairness is never asked.

Specific exceptions are recommended for unlicensed uses for which there is a clear public interest, and for some uses that are highly likely to be fair use anyway, making a case-by-case assessment of fairness unnecessary. Preservation copying by libraries and archives is one example.

The ALRC also recommended that specific exceptions for parliamentary libraries and judicial proceedings should be retained. New specific exceptions are recommended for use of copyright material in royal commissions and statutory inquiries, to allow public access to material when required by a statute, and to allow use of correspondence and other material sent to government.

To encourage the use of “orphan works”, the ALRC recommended that the remedies available for copyright infringement be limited where a reasonably diligent search for the rights holder has been made and, where possible, the work has been attributed to the author.