Piracy is not fair use

10.94 Fair use does not legalise piracy. Unauthorised peer-to-peer file sharing of music and films with strangers, for example, would not be fair use nor a fair dealing for private use.

10.95 However, some object to exceptions for private copying on the grounds that they may facilitate piracy. It may be fine for the owner of a DVD to make a copy of the film for his or her own use but if this is permitted, it is argued, then the person may be more likely to share the copy with others, including through peer-to-peer networks. Foxtel, while open to the idea of a new single exception for private copying, expressed concern about digital-to-digital copying of films, and the possible facilitation of online piracy.[75]

10.96 The Motion Picture Association of America submitted that fair use, with an illustrative purpose for private use, would ‘undoubtedly register in the public mind as a policy conclusion that infringements are excused if they take place at home or in a domestic environment’ and ‘businesses that cater to facilitating such infringements will be normalized in the public eye’.[76]

[I]t is easy to imagine that someone knowingly downloading pirated content in her own home would assume that a newly-created ‘private use’ exception would apply to that activity, as incorrect as this may be. This eminently foreseeable communication problem would contribute to an already problematic culture of piracy.[77]

10.97 The ALRC considers that the introduction of fair use, with an illustrative purpose for private use, will not have this effect. Piracy will be no less criminal if fair use is enacted. If a person is prepared to infringe copyright laws by illegally sharing films with strangers over peer-to-peer networks, that person will presumably have little regard to laws that prohibit digital-to-digital copying of films for purely private use.

[75] Foxtel, Submission 245. See also News Limited, Submission 224.

[76] Motion Picture Association of America Inc, Submission 573.

[77] Ibid. See also Association of American Publishers, Submission 611.