The operation of fair dealing exceptions in the digital environment

7.17 The relationship between the fair dealing exceptions and the statutory licences—particularly whether the former can be relied upon where provision is made for the latter—is another contentious issue for copyright rights holders and users.[34]

7.18 The ALRC asked three questions about Australia’s fair dealing exceptions.

  • what problems, if any, are there with any of the existing fair dealing exceptions in the digital environment;[35]

  • how could the fair dealing exceptions be usefully simplified;[36] and

  • Should the Copyright Act provide for any other specific fair dealing exceptions?[37]

7.19 Views diverged about whether there are any problems with Australia’s current fair dealing exceptions in the digital environment.

7.20 A number of rights owners and entities representing or assisting rights owners submitted that the current fair dealing exceptions operate adequately and effectively.[38] They were of the view that no change,[39] or at least no substantial change,[40] was required to the fair dealing exceptions. For example, publisher John Wiley & Sons submitted that the current fair dealing exceptions ‘are well defined and understood’.[41] Australian Associated Press (AAP) submitted:

The current [fair dealing] exceptions, as drafted, together with the guidance provided by judicial interpretation of these exceptions, provide sufficient certainty as to the respective rights of content producers and users. The existing exceptions also strike an appropriate balance between the interests of copyright owners and those who have a legitimate basis for using copyright material without consent.[42]

7.21 A number of stakeholders, including the Australian Copyright Council, commented that they were unaware of any practical problems[43]:

While the digital economy may give rise to different fact situations, the Copyright Council is not aware of any specific difficulties in applying fair dealing in this environment.[44]

7.22 A number of stakeholders considered that the current provisions are sufficiently adapted, or flexible to respond, to the digital environment.[45] For example, Screenrights observed that the term ‘dealing’ is ‘technology neutral and covers all uses of works and other subject matter’.[46]

7.23 APRA/AMCOS submitted that ‘many of the criticisms of the existing fair dealing exceptions are made in an academic context, and are not evidence based’.[47] There were calls for any reform to the exceptions to be evidence based[48] and include an assessment of the potential economic detriment for content owners.[49] Some called for no change where this would ‘give consumers and users greater freedom to undermine the rights of creators’[50]—that is, by ‘impact[ing] on the capacity of content owners to receive a fair and reasonable return for their investment’.[51] There were calls for any reform to be justified on public policy grounds[52] and comply with Australia’s international obligations (particularly the ‘three-step test’).[53]

7.24 Some respondents submitted that, rather than making changes to the current fair dealing exceptions, efforts instead should be focused on enhancing the public awareness and understanding of them.[54] For example, the Music Council of Australia submitted:

To the extent that there are any problems with the existing fair dealing exceptions, the MCA considers that many of these can be overcome by the Government addressing issues relating to clarity and education.[55]

7.25 The Arts Law Centre of Australia stated that ‘[p]ublic awareness is essential to the success of our copyright laws’ and in its view ‘[t]here seems to be a lack of public understanding as to how web users can engage with the fair dealing exceptions’.[56] Accordingly, the Centre supported ‘an education campaign directed at informing Australians of their copyright rights and obligations’.[57]

7.26 Stakeholders identified a range of problems with the fair dealing exceptions, including:

  • for those wanting change, that the exceptions do not extend far enough;

  • for some others, that the exceptions extend too far; and

  • specific problems with the exceptions if they are to be retained.

7.27 Not all of these problems stem from the digital environment. However, technological change has highlighted existing problems, including with Australia’s traditional approach to drafting specific, purpose-based copyright exceptions.

The exceptions do not extend far enough

7.28 A number of responses—notably from a number of copyright users—submitted that the fair dealing exceptions are problematic because they do not extend far enough.[58] There were three discernible arguments.

7.29 First, some submissions were of the opinion that the fair dealing exceptions are not sufficiently broad to provide an effective balance between owners and users in the digital environment.[59]

7.30 Secondly, for some, this was a complaint about the purpose-based, or closed-ended, nature of the existing fair dealing exceptions; and, in some cases, a complaint about their problematic interpretation by Australian courts.[60]

7.31 Such submissions were of the view that the fair dealing exceptions are not sufficiently adapted, or flexible to respond, to changed and changing circumstances caused by new technologies and uses[61]—an environment where ‘almost every use of technology will involve making copies’.[62] Many of the submissions which expressed this view advocated the introduction of a flexible, ‘open-ended’ exception such as fair use.[63]

7.32 Thirdly, a few submissions considered that particular fair dealing exceptions were generally too specific due to drafting errors.[64]

The purpose-based, or close-ended, nature of the exceptions is problematic

7.33 The existing fair dealing exceptions were characterised as ‘pernickety’.[65] A number of submissions were of the view that the fair dealing exceptions were insufficiently broad and responsive to deal with current or future uses.[66] For example, Robyn Wright submitted:

By favouring particular activities, purpose-based exceptions already restrict the exercise of some publicly valuable acts and also potentially limit the development of future unanticipated and innovative uses in the changing digital environment.[67]

7.34 Others gave specific examples of uses which they considered to be beneficial to the public yet which they considered may, or would, not come within the bounds of the existing fair dealing exceptions. These uses were seen to encompass important public interest purposes such as free speech, cultural purposes and access to justice. For example:

  • accessible formats of texts—including ‘verbalisation of elements such as page numbers or spelling of proper names’ and navigational tools[68]—for blind or vision impaired persons;[69]

  • less formal research such as ‘the undertaking of inquiries to satisfy personal curiosity, without the need for some new discovery or insight to be made as a result’;[70]

  • the communication to the public of works created by students and researchers using museum collections;[71]

  • ‘use of images in a presentation or seminar to illustrate the point being made’;[72]

  • ‘use of short quotations in academic publications’;[73]

  • the communication to the public of the datasets underlying research results which could assist in independent verification of those results, particularly for online qualitative research;[74]

  • a university’s creation of an open digital repository of theses and other research publications;[75]

  • a university’s communication of a student’s assignment to other students ‘as a “good example” or as part of a collaborative learning exercise’;[76]

  • a university’s reproduction and distribution of ‘reference articles obtained by one researcher for the rest of the research team’;[77]

  • the reproduction of ‘an extract from a book in the course of reviewing a film’ of that book;[78]

  • the reproduction of ‘an extract from a play in the course of reviewing a performance of a play’;[79]

  • criticism of individuals’ actions, including public figures, ‘cit[ing] works in support of an argument, analysis or review’;[80]

  • commentary or the expression of opinion rather than ‘reporting’ of events; for example, ‘some types of newspaper opinion piece and humourous topical news programmes’;[81]

  • publication of previously unpublished copyright material even if for the purpose of criticism, review or news reporting;[82]

  • ‘the full range of contemporary cultural practices that might be thought of as “parodies” or as being “satirical”’, for example, pastiche or caricature;[83]

  • downstream uses of satirical or parodic material;[84]

  • professional legal or law-related services ‘such as preparing and executing agreements, mediation, arbitration or Alternative Dispute Resolution, or preparation of patent or trademark applications’;[85] and

  • 3D printing.[86]

The exceptions extend too far

7.35 By contrast, there were some submissions, mainly from rights holders, that suggested that the current fair dealing exceptions—perhaps as misunderstood by some users[87]—extend too far. There were three discernible arguments.

7.36 First, some rights holders identified problems with the fair dealing exception for the purpose of reporting news which have, or could have, a negative effect on their businesses.[88]

7.37 Secondly, there were some stakeholders, particularly publishers, who suggested that the fair dealing exceptions should not apply where licences—including the statutory licence for educational purposes—are available.[89] For example, Spinifex Press submitted that:

The fair dealing exceptions for research should not apply in a way that affects licences such as those offered by Copyright Agency. These income streams are important for underpaid writers and also for independent publishers.[90]

7.38 Copyright Agency/Viscopy made a similar argument with respect to fair dealing for the purpose of research or study in s 40. It called for the exception to:

  • contain ‘an express condition that the exception not apply if there is a licensing solution applicable to the user’; and

  • specifically exclude commercial research noting that ‘[t]his is the approach in the UK, where commercial research is allowed, but under licences from rightsholders and rights management organisations’.[91]

7.39 Thirdly, some submissions suggested that the fair dealing exceptions were misunderstood by some users and that this leads to infringement.[92] For example, the Australian Society of Authors submitted:

in practice consumers now infringe creators’ rights more broadly than ‘fair dealing’ allows, because digital technology provides the capacity to do this, and the capacity is utilised.[93]

7.40 The first argument was the most detailed of the three. A few rights holders expressed concern that their copyright material was being freely used by others for commercial purposes under the guise of news reporting when the rights holders considered the use to be for another purpose.[94] These submissions advocated change in this respect but otherwise wanted the current fair dealing exceptions to remain.[95]

7.41 The Combined Newspapers and Magazines Copyright Committee (CNMCC) was specifically concerned with who may avail themselves of the exception under s 42(1)(b)—which provides that a dealing with a work or adaptation of a work will be a fair dealing if ‘it is for the purpose of, or associated with, the reporting of news by means of a communication or in a cinematograph film’.[96] The CNMCC provided information about the legislative history and rationale for the substitution of the word ‘communication’ for ‘broadcasting’ in s 42(1)(b) and submitted:

The change in the Copyright Act to include all ‘communications’ in the fair dealing defence had the unintended effect of greatly extending the scope of the defence by potentially making it available to anyone who wished to communicate a news item to the public, as opposed to a small number of organisations which supplied a broadcasting or diffusion service.[97]

7.42 The CNMCC expressed concern that non-news organisations are taking articles and photographs about that organisation’s products and services that have been published in newspapers and magazines and are communicating them—either posting them on that organisation’s website or emailing them to that organisation’s clients or other organisations.[98] The CNMCC submitted that the exception was not intended to apply to such acts. News Limited, which is a member of the CNMCC, characterised such behaviour as free riding on publishers’ investment.[99]

7.43 The CNMCC submitted that:

Publishers, through the Copyright Agency Limited (CAL), do provide licences to allow organisations to place articles on their intranets, send them to clients and make them available on the internet subject to conditions on the quantity of articles that can be used, the length of time on which they can appear on an organisation’s website and payment of an appropriate fee. Photographs can also be purchased, usually direct from the publisher. If the fair dealing provisions can be used as claimed, a significant part of the business of the publishers will be undermined, in a market which is already facing severe pressures.[100]

7.44 The CNMCC expressed concern that such activity, in lieu of licensing, ‘may become an increasingly common occurrence’.[101] It called for amendment of the Copyright Act to:

make it clear that the communication of newspaper or magazine articles is not permitted under the fair dealing exception unless such activity is performed by an organisation which provides a news or information service.[102]

7.45 It advocated that ‘news or information service’ be defined exclusively as

a service conducted by an organisation whose principal business is the commercial provision of news or information to the public, including the publisher of a newspaper, magazine or similar periodical publication.[103]

7.46 Further, it called for the fair dealing exception to be amended ‘to explicitly state that it would not be available to an organisation whose news service is principally that of a news aggregator until after a specified time’.[104] In its first submission, News Limited supported the CNMCC’s recommendations in respect of this fair dealing exception.[105] However, in its supplementary submission, News Limited submitted that the fair dealing exceptions, including that for news reporting, did not require amendment as they were ‘functioning well’.[106]

7.47 Several sports bodies were concerned that media organisations were using ‘excessive’ amounts of the sports bodies’, or their exclusive licensees’, audio-visual content or photographs—specifically highlights from games or matches—for the purpose of providing entertainment, including encouraging traffic to websites or apps, rather than for the purpose of news reporting.[107]

7.48 The Coalition of Major Professional and Participation Sports (COMPPS) submitted that ‘[m]edia organisations which compile and broadcast unlicensed highlight packages of matches are directly exploiting copyright material for commercial gain’.[108] It explained:

The value of media rights to a sporting event is particularly susceptible to being damaged by the broadcast of relatively small proportions of the event. For example, in some sports, there may only be a small number of scoring movements or highlights.[109]

7.49 Cricket Australia submitted that ‘a reasonably short video package or series of clips’ of cricket matches ‘has the potential to significantly undermine’ its digital licensing program.[110] Both Cricket Australia and the Australian Football League (AFL) submitted that they were supportive of ‘genuine’ news reporting of their sports.[111] However, the AFL was of the view that ‘extensive and unreasonable use’ was becoming more frequent; submitting that media organisations’ websites ‘are pushing the boundaries further and further under the guise of fair dealing for the reporting of the news’.[112] It too considered that such use constituted ‘a real threat’ to its digital licensing arrangements.[113]

7.50 All three sports bodies submitted that the current fair dealing exception for the purpose of news reporting is imprecise and/or uncertain.[114] The AFL also submitted that it was costly to enforce its rights in this context: ‘[t]o say that sports bodies can litigate to deal with these matters is naïve, given the proliferation of these activities and the high cost of litigation’.[115]

7.51 The three sports bodies called for legislative or regulatory amendments to provide greater clarity and certainty as to when the exception applies. [116] They called for such reform to encompass:

  • guidance as to, or specific restrictions on, the amount of material that could be used—with COMPPS referring to the similar approach taken with fair dealing for the purpose of research or study, and the AFL noting that ‘a one size fits all quantitative test’ may not be appropriate for all sports;

  • ‘guidance on the distinction between reporting news and providing content for entertainment or aggregation purposes’,[117] that is ‘the boundaries[118] of the exception; and

  • a requirement that in order to come within the exception the use must not materially impact the value of the copyright material—that is, not materially impact the rights holder’s ability to exploit its rights,[119] including both its existing and potential market for the content.[120]

7.52 News Limited’s supplementary submission responded to these arguments. With respect to the suggestion that use of the reporting of news exception was undermining the value of sports organisations’ media rights, it submitted that ‘[t]he evidence—media rights deals—suggests that this claim is unfounded’.[121] It provided information about media rights agreements, which it stated were increasing in value and breadth. It also observed that if a sports organisation believes that the Copyright Act has been breached, ‘action can be taken via the courts’. It was strongly of the view that ‘[a]ttempts to define news and/or set limits on the amount of material to be used to report news would pose significant threats to freedom of speech and freedom of press’:[122]

To claim that the exception is imprecise and uncertain and to suggest that what constitutes news could be articulated by boundaries and limitations is dangerous to the Australian public’s right to know.[123]

Specific problems with the exceptions

7.53 Some submissions detailed particular problems with some of the fair dealing exceptions.

7.54 The fair dealing provisions for the purpose of criticism or review and reporting of news in a text form contain a requirement for a ‘sufficient acknowledgment’ to be made of the work or audio-visual item.[124] There is no such requirement with respect to the fair dealing provisions for the purpose of reporting news by means of a communication or in a cinematograph film.[125]

7.55 NSW Young Lawyers noted that the digital environment provides many opportunities and platforms for a person to criticise or review topics in which they may include or refer to third party copyright material. They submitted that the requirement for sufficient acknowledgment in order for a use to come within the criticism or review exceptions is problematic ‘in the context of sharing or posting a URL online or in character-limited communication such as a tweet’ and in cases where the identity of the original author is unclear or unknown.[126]

7.56 The CNMCC acknowledged that it would be ‘difficult’ for broadcasters and others to provide an acknowledgment of the work they are dealing with in the course of reporting news but nevertheless were of the view that ‘there appears to be no reason why communications of a work by newspapers, magazines and similar services should not require sufficient acknowledgment’.[127] That is, they sought to rectify the inconsistency between s 42(1)(a) and (b) and suggested a draft form of wording for such an amendment to s 42(1)(b).

7.57 A second problem concerns the provisions relating to the use of works and subject matter other than works in the context of professional advice, which were described as ‘a mess’.[128] Section 43(2) provides a fair dealing exception with respect to works for the purpose of a legal practitioner, registered patent attorney or registered trade marks attorney giving professional advice. Section 104(c), which could be seen as the equivalent provision for subject-matter other than works, does not in fact use the term ‘fair dealing’ so it is a broader exception. Similarly, s 104(b), which provides an exception for someone seeking professional advice from a legal practitioner, registered patent attorney or registered trade marks attorney, does not use the term ‘fair dealing’. There is no corresponding exception—fair dealing or otherwise—with respect to works.

7.58 The CLRC noted these inconsistencies, for which it could see no basis, and recommended that the distinctions be removed.[129] At least one submission echoed the CLRC’s recommendation and called for ss 43(2), 104(b) and 104(c) to be made consistent with one another if reform is to be effected ‘within the existing paradigm’ of specific exceptions.[130] The authors of this submission went further, submitting:

The fact that what should be a straightforward and uncontroversial defence has been implemented in such an incoherent manner should give us serious pause for thought about the ability of the legislature to adequately draft provisions that exempt specific practices from infringement.[131]

7.59 Some submissions identified some drafting errors.[132] For example, the ABC identified a drafting ‘oversight’ in the fair dealing exceptions for the purpose of reporting news. The ABC referred to the presence of the word ‘communication’ in ss 42(1)(b) and 103B(1)(b) but its point was different to that which had been made by the CNMCC, mentioned earlier. It presumed that ‘communication’ covered both television and radio broadcasting but was ‘concerned’ that it might not cover a ‘sound recording’. However, it held the view that ‘the practice of using sound recordings for reporting news is widely accepted within the industry’.[133]

7.60 Robert Burrell, Michael Handler, Emily Hudson and Kimberlee Weatherall identified a number of drafting ‘mishaps’.[134] For example, they observed that the definition of ‘sufficient acknowledgment’ in s 10(1) applies to ‘works’ only.[135] They submitted that this creates ‘real uncertainty’ as to the form any acknowledgment should take with respect to the use of audio-visual items for the purpose of reporting news (s 103B(1)(a)) or criticism or review (s 103A). Further, they criticised the wording of the provisions detailing fair dealing for the purposes of criticism and review, submitting:

a newspaper or blogger could not set out a passage from Tolkien’s The Hobbit in the course of a review of the Peter Jackson film. The extract would be taken from a literary work and, as such, s 41 would be the operative provision (s 103A only applying where there is a dealing with an audio-visual item). Section 41 only applies where the criticism or review is of that work or another work, and ‘work’ is defined ... so that it specifically does not include a ‘cinematograph film’.[136]

7.61 They regarded the outcome as ‘clearly preposterous’. They held the view that such ‘mishaps’ are ‘inevitable’ if exceptions are approached from the perspective of being available only ‘in the most carefully defined circumstances’.[137]

[34] See Ch 6 and Ch 14.

[35] Australian Law Reform Commission, Copyright and the Digital Economy, IP 42 (2012), Question 45.

[36] Ibid, Question 46.

[37] Ibid, Question 47.

[38] SPAA, Submission 281; Free TV Australia, Submission 270; Music Council of Australia, Submission 269; BSA, Submission 248; APRA/AMCOS, Submission 247; Foxtel, Submission 245; ARIA, Submission 241; John Wiley & Sons, Submission 239; ASTRA, Submission 227; News Limited, Submission 224; Australian Copyright Council, Submission 219; Screenrights, Submission 215; AAP, Submission 206; AMPAL, Submission 189; Allen&Unwin Book Publishers, Submission 174; Arts Law Centre of Australia, Submission 171; Tabcorp Holdings Ltd, Submission 164; Commercial Radio Australia, Submission 132; ALAA, Submission 129.

[39] For example, ASTRA, Submission 227; AAP, Submission 206; AMPAL, Submission 189; ALAA, Submission 129.

[40] Music Council of Australia, Submission 269; BSA, Submission 248.

[41] John Wiley & Sons, Submission 239.

[42] AAP, Submission 206.

[43] For example, Foxtel, Submission 245; ARIA, Submission 241; AMPAL, Submission 189; ALAA, Submission 129.

[44] Australian Copyright Council, Submission 219.

[45] For example, ARIA, Submission 241; John Wiley & Sons, Submission 239; Australian Film/TV Bodies, Submission 205; Confidential, Submission 16.

[46] Screenrights, Submission 215.

[47] APRA/AMCOS, Submission 247.

[48] Ibid; Foxtel, Submission 245; AAP, Submission 206; AMPAL, Submission 189.

[49] ASTRA, Submission 227.

[50] Australia Council for the Arts, Submission 260.

[51] ASTRA, Submission 227.

[52] Australian Film/TV Bodies, Submission 205.

[53] BSA, Submission 248; Australian Film/TV Bodies, Submission 205. The three-step test is discussed in Ch 4.

[54] Music Council of Australia, Submission 269; Arts Law Centre of Australia, Submission 171.

[55] Music Council of Australia, Submission 269.

[56] Arts Law Centre of Australia, Submission 171.

[57] Ibid.

[58] R Burrell and others, Submission 278; Yahoo!7, Submission 276; Grey Literature Strategies Research Project, Submission 250; Universities Australia, Submission 246; CAMD, Submission 236; Small Press Network, Submission 221; National Library of Australia, Submission 218; Google, Submission 217; ADA and ALCC, Submission 213; R Wright, Submission 167; Society of University Lawyers, Submission 158; Powerhouse Museum, Submission 137.

[59] Grey Literature Strategies Research Project, Submission 250; ADA and ALCC, Submission 213; Powerhouse Museum, Submission 137.

[60] R Burrell and others, Submission 278.

[61] For example, Ibid; University of Sydney, Submission 275; Universities Australia, Submission 246; M Rimmer, Submission 122.

[62] Universities Australia, Submission 246.

[63] For example, R Burrell and others, Submission 278; Grey Literature Strategies Research Project, Submission 250; R Wright, Submission 167; Society of University Lawyers, Submission 158; Powerhouse Museum, Submission 137.

[64] For example, R Burrell and others, Submission 278; Australian Broadcasting Corporation, Submission 210.

[65] K Bowrey, Submission 94.

[66] For example, Yahoo!7, Submission 276; Universities Australia, Submission 246; ADA and ALCC, Submission 213; R Wright, Submission 167; Society of University Lawyers, Submission 158; M Rimmer, Submission 122.

[67] R Wright, Submission 167.

[68] Vision Australia, Submission 181.

[69] Blind Citizens Australia, Submission 157

[70] R Burrell and others, Submission 278. See also State Library of New South Wales, Submission 168; National Archives of Australia, Submission 155.

[71] CAMD, Submission 236; Powerhouse Museum, Submission 137.

[72] Law Council of Australia IP Committee, Submission 284; Law Council of Australia, Submission 263. R Wright, Submission 167 also gave this example.

[73] R Wright, Submission 167.

[74] ARC Centre of Excellence for Creative Industries and Innovation, Submission 208.

[75] Ibid; Society of University Lawyers, Submission 158.

[76] Society of University Lawyers, Submission 158.

[77] Ibid.

[78] R Burrell and others, Submission 278.

[79] Ibid.

[80] Ibid.

[81] Ibid.

[82] Ibid.

[83] Ibid.

[84] Ibid.

[85] NSW Government, Submission 294.

[86] M Rimmer, Submission 122.

[87] Australian Society of Authors, Submission 169; Confidential, Submission 02.

[88] COMPPS, Submission 266; Combined Newspapers and Magazines Copyright Committee, Submission 238; AFL, Submission 232; Cricket Australia, Submission 228; News Limited, Submission 224.

[89] Copyright Agency/Viscopy, Submission 249; ALPSP, Submission 199; RIC Publications Pty Ltd, Submission 147; Spinifex Press, Submission 125; Confidential, Submission 14.

[90] Spinifex Press, Submission 125.

[91] Copyright Agency/Viscopy, Submission 249.

[92] Australian Society of Authors, Submission 169; Confidential, Submission 02.

[93] Australian Society of Authors, Submission 169.

[94] COMPPS, Submission 266; Combined Newspapers and Magazines Copyright Committee, Submission 238; AFL, Submission 232; Cricket Australia, Submission 228; News Limited, Submission 224.

[95] Combined Newspapers and Magazines Copyright Committee, Submission 238; AFL, Submission 232; Cricket Australia, Submission 228; News Limited, Submission 224.

[96] Emphasis added.

[97] Combined Newspapers and Magazines Copyright Committee, Submission 238.

[98] Ibid.

[99] News Limited, Submission 224.

[100] Combined Newspapers and Magazines Copyright Committee, Submission 238.

[101] Ibid.

[102] Ibid.

[103] Ibid.

[104] Ibid.

[105] News Limited, Submission 224.

[106] News Limited, Submission 286.

[107] COMPPS, Submission 266; AFL, Submission 232; Cricket Australia, Submission 228.

[108] COMPPS, Submission 266.

[109] Ibid.

[110] Cricket Australia, Submission 228.

[111] AFL, Submission 232; Cricket Australia, Submission 228.

[112] AFL, Submission 232.

[113] Ibid.

[114] COMPPS, Submission 266; AFL, Submission 232; Cricket Australia, Submission 228.

[115] AFL, Submission 232.

[116] Only Cricket Australia specifically mentioned this possibility.

[117] Cricket Australia, Submission 228.

[118] COMPPS, Submission 266. Emphasis added.

[119] Cricket Australia, Submission 228.

[120] AFL, Submission 232.

[121] News Limited, Submission 286.

[122] Ibid.

[123] Ibid.

[124] One submission was concerned about the inflexibility of the requirement as it could be unjust: failure to comply could ‘automatically prevent an exception applying irrespective of whether the defendant acted in good faith and in accordance with ordinary industry practices’. A possible reform option would be for the factor to be considered when assessing fairness: R Burrell and others, Submission 278.

[125]Copyright Act 1968 (Cth) ss 42(1)(b) and 103B(1)(b).

[126] NSW Young Lawyers, Submission 195.

[127] Combined Newspapers and Magazines Copyright Committee, Submission 238.

[128] R Burrell and others, Submission 278.

[129] Copyright Law Review Committee, Simplification of the Copyright Act 1968: Part 1: Exceptions to the Exclusive Rights of Copyright Owners (1998), [4.28]–[4.29], [6.137].

[130] R Burrell and others, Submission 278.

[131] Ibid.

[132] Ibid; Australian Broadcasting Corporation, Submission 210.

[133] Australian Broadcasting Corporation, Submission 210.

[134] R Burrell and others, Submission 278.

[135] Ibid. The CLRC also noted this error: Copyright Law Review Committee, Simplification of the Copyright Act 1968: Part 1: Exceptions to the Exclusive Rights of Copyright Owners (1998), [6.119].

[136] R Burrell and others, Submission 278.

[137] Ibid.