Fair use provision recommended for Australian copyright law

The ALRC has recommended fair use provisions for Australian copyright law. It has been branded as "controversial" by Attorney-General George Brandis.

A report by the Australian Law Reform Commission (ALRC) has recommended that fair use provisions be added to Australian copyright law.

(Gavel 2 image by Jason Morrison, royalty free)

The ALRC handed down its recommendations in response to a request from the previous federal government in 2012, which called for an investigation into whether the Copyright Act of 1968 needs to be updated in response to new technologies and the changing digital environment.

Under the fair use provision, people would be able to use copyrighted material for "transformative" uses — that is, people would not be infringing copyright if material was used for purposes other than the initial way the material was created for. This includes purposes such as review, satire, study and educational use. The recommendations consider fair use to be a technology-neutral open standard that would be flexible in response to future technological developments.

Fair use is intended to give consumers and owners of copyrighted content more flexibility in how this content can be used, shared or disseminated. For example, under current Australian copyright law, it is illegal to make a copy of a DVD that you have bought on to another device, such as a smartphone or tablet.

Fair use clauses exist in other countries such as the United States and exist to provide a fairness defence when someone is accused of copyright infringement.

"Fair use is a flexible exception that can be applied to new technologies and services, which is crucial in the digital economy," said Professor Jill McKeough, the commissioner in charge of the inquiry. "Fair use can facilitate the public interest in accessing material, encourage new productive uses, and stimulate competition and innovation."

The report has handed down 30 recommendations that take a "less prescriptive approach" to copyright law in Australia. Various stakeholders were consulted in conjunction with the report, including academics, music organisations and online service providers.

Australian Attorney-General George Brandis said in parliament that the recommendations were "a controversial proposal", and that the government will respond to the proposal this year. Previously, Brandis has said that Australian government will continue to protect the content industry.

"I want to reaffirm the government's commitment to the content industries. It is the government's strong view that the fundamental principles of intellectual property law, which protect the rights of content creators, have not changed merely because of the emergence of new media and new platforms," Brandis said in 2013.

The ALRC has provided an alternative if fair use is not adopted by the government. A fair dealing exception could be implemented that would be similar to fair use, but is restricted to a set of purposes rather than the illustrative purposes that fair use provides.

"In the ALRC's view, Australia is ready for, and needs, a fair use exception now. However, if fair use is not enacted, then the new fair dealing exception will be a considerable improvement on the current set of exceptions in the Copyright Act," said the ALRC in its summary report (PDF).

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