Australian copyright law review – with a fair use exception the right questions could be asked

An Australian copyright law review committee recommended the introduction of fair use in 1998. Almost 30 existing exceptions could be repealed, if fair use were enacted. In time, others might also be repealed. Replacing so many exceptions with a single fairness exception will make the Copyright Act considerably more clear, coherent and principled.

Many people innocently infringe copyright in going about their everyday activities. Reforms are recommended to legalise common consumer practices which do not harm copyright owners. Copyright legislation is extremely complex and detailed, and also technology-specific. Reducing legislative complexity and introducing flexibility creates a better environment for business, consumers, education and government.

The ALRC recommended the introduction of fair use. An important feature of fair use is that it explicitly recognises the need to protect rights holders’ markets. If a licence can be obtained to use copyright material, then the unlicensed use of that material will often not be fair. This is vital to ensuring copyright law continues to fulfil its primary purpose of providing creators with sufficient incentive to create.

Many have expressed concern that fair use may harm rights holders because it is uncertain. The ALRC recognises the importance of having copyright exceptions that are certain in scope. This is important for rights holders, as confidence in exploiting their rights underlies incentives to creation. It is also important for users, who should also be confident that they can make new and productive use of copyright material without a licence where this is appropriate.

Concern about uncertainty comes from an important and positive feature of fair use – its flexibility. Fair use differs from most current exceptions to copyright in that it is a broad standard that incorporates principles, rather than a detailed prescriptive rule. Law that incorporates principles or standards is generally more flexible than prescriptive rules, and can adapt to new technologies and services. A fair use exception would not need to be amended to account for the fact that consumers now use tablets and store purchased copies of copyright material in personal digital lockers in the cloud.

Although standards are generally less certain in scope than detailed rules, a clear principled standard is more certain than an unclear complex rule. The Report recommends replacing many complex prescriptive exceptions with one clear and more certain standard – fair use. Copyright must leave ‘breathing room’ for new materials and productive uses that make use of other copyright material.

Fair use is technology neutral, and it is not confined to particular types of copyright material, nor to particular rights. However, when it is applied, fair use can discriminate between technologies, types of use, and types of copyright material. Uses with some technologies may be found to be fair, while uses with other technologies – perhaps that unfairly encroach on rights holders’ markets – may not. This is one of the strengths of fairness exceptions. Fair use is a versatile instrument, but it is not blunt.