Download PDF

4. The Case for Fair Use in Australia

Proposal 4–1 The Copyright Act 1968 (Cth) should provide a broad, flexible exception for fair use.

Proposal 4–2 The new fair use exception should contain:

(a) an express statement that a fair use of copyright material does not infringe copyright;

(b) a non-exhaustive list of the factors to be considered in determining whether the use is a fair use (‘the fairness factors’); and

(c) a non-exhaustive list of illustrative uses or purposes that may qualify as fair uses (‘the illustrative purposes’).

Proposal 4–3 The non-exhaustive list of fairness factors should be:

(a) the purpose and character of the use;

(b) the nature of the copyright material used;

(c) in a case where part only of the copyright material is used—the amount and substantiality of the part used, considered in relation to the whole of the copyright material; and

(d) the effect of the use upon the potential market for, or value of, the copyright material.

Proposal 4–4 The non-exhaustive list of illustrative purposes should include the following:

(a) research or study;

(b) criticism or review;

(c) parody or satire;

(d) reporting news;

(e) non-consumptive;

(f) private and domestic;

(g) quotation;

(h) education; and

(i) public administration.

Question 4–1 What additional uses or purposes, if any, should be included in the list of illustrative purposes in the fair use exception?

Question 4–2 If fair use is enacted, the ALRC proposes that a range of specific exceptions be repealed. What other exceptions should be repealed if fair use is enacted?

6. Statutory Licences

Proposal 6–1 The statutory licensing schemes in pts VA, VB and VII div 2 of the Copyright Act should be repealed. Licences for the use of copyright material by governments, educational institutions, and institutions assisting persons with a print disability, should instead be negotiated voluntarily.

Question 6–1 If the statutory licences are repealed, should the Copyright Act be amended to provide for certain free use exceptions for governments and educational institutions that only operate where the use cannot be licensed, and if so, how?

7. Fair Dealing

Proposal 7–1 The fair use exception should be applied when determining whether a use for the purpose of research or study; criticism or review; parody or satire; reporting news; or professional advice infringes copyright. ‘Research or study’, ‘criticism or review’, ‘parody or satire’, and ‘reporting news’ should be illustrative purposes in the fair use exception.

Proposal 7–2 The Copyright Act should be amended to repeal the following exceptions:

(a) ss 40(1), 103C(1)—fair dealing for research or study;

(b) ss 41, 103A—fair dealing for criticism or review;

(c) ss 41A, 103AA—fair dealing for parody or satire;

(d) ss 42, 103B—fair dealing for reporting news;

(e) s 43(2)—fair dealing for a legal practitioner, registered patent attorney or registered trade marks attorney giving professional advice; and

(f) ss 104(b) and (c)—professional advice exceptions.

Proposal 7–3 If fair use is not enacted, the exceptions for the purpose of professional legal advice in ss 43(2), 104(b) and (c) of the Copyright Act should be repealed and the Copyright Act should provide for new fair dealing exceptions ‘for the purpose of professional advice by a legal practitioner, registered patent attorney or registered trade marks attorney’ for both works and subject-matter other than works.

Proposal 7–4 If fair use is not enacted, the existing fair dealing exceptions, and the new fair dealing exceptions proposed in this Discussion Paper, should all provide that the fairness factors must be considered in determining whether copyright is infringed.

8. Non-consumptive Use

Proposal 8–1 The fair use exception should be applied when determining whether uses of copyright material for the purposes of caching, indexing or data and text mining infringes copyright. ‘Non-consumptive use’ should be an illustrative purpose in the fair use exception.

Proposal 8–2 If fair use is enacted, the following exceptions in the Copyright Act should be repealed:

(a) s 43A—temporary reproductions made in the course of communication;

(b) s 111A—temporary copying made in the course of communication;

(c) s 43B—temporary reproductions of works as part of a technical process of use;

(d) s 111B—temporary copying of subject-matter as a part of a technical process of use; and

(e) s 200AAA—proxy web caching by educational institutions.

Proposal 8–3 If fair use is not enacted, the Copyright Act should be amended to provide a new fair dealing exception for ‘non-consumptive’ use. This should also require the fairness factors to be considered. The Copyright Act should define a ‘non-consumptive’ use as a use of copyright material that does not directly trade on the underlying creative and expressive purpose of the material.

9. Private and domestic use

Proposal 9–1 The fair use exception should be applied when determining whether a private and domestic use infringes copyright. ‘Private and domestic use’ should be an illustrative purpose in the fair use exception.

Proposal 9–2 If fair use is not enacted, the Copyright Act should provide for a new fair dealing exception for private and domestic purposes. This should also require the fairness factors to be considered.

Proposal 9–3 The exceptions for format shifting and time shifting in ss 43C, 47J, 109A, 110AA and 111 of the Copyright Act should be repealed.

Proposal 9–4 The fair use exception should be applied when determining whether a use of copyright material for the purpose of back-up and data recovery infringes copyright.

Proposal 9–5 The exception for backing-up computer programs in s 47J of the Copyright Act should be repealed.

10. Transformative Use and Quotation

Proposal 10–1 The Copyright Act should not provide for any new ‘transformative use’ exception. The fair use exception should be applied when determining whether a ‘transformative use’ infringes copyright.

Proposal 10–2 The fair use exception should be applied when determining whether quotation infringes copyright. ‘Quotation’ should be an illustrative purpose in the fair use exception.

Proposal 10–3 If fair use is not enacted, the Copyright Act should provide for a new fair dealing exception for quotation. This should also require the fairness factors to be considered.

11. Libraries, Archives and Digitisation

Proposal 11–1 If fair use is enacted, s 200AB of the Copyright Act should be repealed.

Proposal 11–2 The fair use exception should be applied when determining whether uses of copyright material not covered by specific libraries and archives exceptions infringe copyright.

Proposal 11–3 If fair use is not enacted, the Copyright Act should be amended to provide for a new fair dealing exception for libraries and archives. This should also require the fairness factors to be considered.

Question 11–1 Should voluntary extended collective licensing be facilitated to deal with mass digitisation projects by libraries, museums and archives? How can the Copyright Act be amended to facilitate voluntary extended collective licensing?

Proposal 11–4 The Copyright Act should be amended to provide a new exception that permits libraries and archives to make copies of copyright material, whether published or unpublished, for the purpose of preservation. The exception should not limit the number or format of copies that may be made.

Proposal 11–5 If the new preservation copying exception is enacted, the following sections of the Copyright Act should be repealed:

(a) s 51A—reproducing and communicating works for preservation and other purposes;

(b) s 51B—making preservation copies of significant works held in key cultural institutions’ collections;

(c) s 110B—copying and communicating sound recordings and cinematograph films for preservation and other purposes;

(d) s 110BA—making preservation copies of significant recordings and films in key cultural institutions’ collections; and

(e) s 112AA—making preservation copies of significant published editions in key cultural institutions’ collections.

Proposal 11–6 Any new preservation copying exception should contain a requirement that it does not apply to copyright material that can be commercially obtained within a reasonable time at an ordinary commercial price.

Proposal 11–7 Section 49 of the Copyright Act should be amended to provide that, where a library or archive supplies copyright material in an electronic format in response to user requests for the purposes of research or study, the library or archive must take measures to:

(a) prevent the user from further communicating the work;

(b) ensure that the work cannot be altered; and

(c) limit the time during which the copy of the work can be accessed.

12. Orphan Works

Proposal 12–1 The fair use exception should be applied when determining whether a use of an ‘orphan work’ infringes copyright.

Proposal 12–2 The Copyright Act should be amended to limit the remedies available in an action for infringement of copyright, where it is established that, at the time of the infringement:

(a) a ‘reasonably diligent search’ for the rights holder had been conducted and the rights holder had not been found; and

(b) as far as reasonably possible, the work was clearly attributed to the author.

Proposal 12–3 The Copyright Act should provide that, in determining whether a ‘reasonably diligent search’ was conducted, regard may be had, among other things, to:

(a) how and by whom the search was conducted;

(b) the search technologies, databases and registers available at the time; and

(c) any guidelines or industry practices about conducting diligent searches available at the time.

13. Educational Use

Proposal 13–1 The fair use exception should be applied when determining whether an educational use infringes copyright. ‘Education’ should be an illustrative purpose in the fair use exception.

Proposal 13–2 If fair use is not enacted, the Copyright Act should provide for a new exception for fair dealing for education. This would also require the fairness factors to be considered.

Proposal 13–3 The exceptions for education in ss 28, 44, 200, 200AAA and 200AB of the Copyright Act should be repealed.

14. Government Use

Proposal 14–1 The fair use exception should be applied when determining whether a government use infringes copyright. ‘Public administration’ should be an illustrative purpose in the fair use exception.

Proposal 14–2 If fair use is not enacted, the Copyright Act should provide for a new exception for fair dealing for public administration. This should also require the fairness factors to be considered.

Proposal 14–3 The following exceptions in the Copyright Act should be repealed:

(a) ss 43(1), 104—judicial proceedings; and

(b) ss 48A, 104A—copying for members of Parliament.

15. Retransmission of Free-to-air Broadcasts

Proposal 15–1

Option 1: The exception to broadcast copyright provided by the Broadcasting Services Act 1992 (Cth), and applying to the retransmission of free-to-air broadcasts; and the statutory licensing scheme applying to the retransmission of free-to-air broadcasts in pt VC of the Copyright Act, should be repealed. This would effectively leave the extent to which retransmission occurs entirely to negotiation between the parties—broadcasters, retransmitters and underlying copyright holders.

Option 2: The exception to broadcast copyright provided by the Broadcasting Services Act, and applying to the retransmission of free-to-air broadcasts, should be repealed and replaced with a statutory licence.

Proposal 15–2 If Option 2 is enacted, or the existing retransmission scheme is retained, retransmission ‘over the internet’ should no longer be excluded from the statutory licensing scheme applying to the retransmission of free-to-air broadcasts. The internet exclusion contained in s 135ZZJA of the Copyright Act should be repealed and the retransmission scheme amended to apply to retransmission by any technique, subject to geographical limits on reception.

Question 15–1 If the internet exclusion contained in s 135ZZJA of the Copyright Act is repealed, what consequential amendments to pt VC, or other provisions of the Copyright Act, would be required to ensure the proper operation of the retransmission scheme?

Proposal 15–3 If it is retained, the scope and application of the internet exclusion contained in s 135ZZJA of the Copyright Act should be clarified.

Question 15–2 How should the scope and application of the internet exclusion contained in s 135ZZJA of the Copyright Act be clarified and, in particular, its application to internet protocol television?

16. Broadcasting

Proposal 16–1 The Copyright Act should be amended to ensure that the following exceptions (the ‘broadcast exceptions’), to the extent these exceptions are retained, also apply to the transmission of television or radio programs using the internet:

(a) s 45—broadcast of extracts of works;

(b) ss 47, 70 and 107—reproduction for broadcasting;

(c) s 47A—sound broadcasting by holders of a print disability radio licence;

(d) s 67—incidental broadcast of artistic works;

(e) s 109—broadcasting of sound recordings;

(f) s 135ZT—broadcasts for persons with an intellectual disability;

(g) s 199—reception of broadcasts;

(h) s 200—use of broadcasts for educational purposes; and

(i) pt VA—copying of broadcasts by educational institutions.

Question 16–1 How should such amendments be framed, generally, or in relation to specific broadcast exceptions? For example, should:

(a) the scope of the broadcast exceptions be extended only to the internet equivalent of television and radio programs?

(b) ‘on demand’ programs continue to be excluded from the scope of the broadcast exceptions, or only in the case of some exceptions?

(c) the scope of some broadcast exceptions be extended only to content made available by free-to-air broadcasters using the internet?

Proposal 16–2 If fair use is enacted, the broadcast exceptions in ss 45 and 67 of the Copyright Act should be repealed.

Question 16–2 Section 152 of the Copyright Act provides caps on the remuneration that may be ordered by the Copyright Tribunal for the radio broadcasting of published sound recordings. Should the Copyright Act be amended to repeal the one per cent cap under s 152(8) or the ABC cap under s 152(11), or both?

Question 16–3 Should the compulsory licensing scheme for the broadcasting of published sound recordings in s 109 of the Copyright Act be repealed and licences negotiated voluntarily?

17. Contracting Out

Proposal 17–1 The Copyright Act should provide that an agreement, or a provision of an agreement, that excludes or limits, or has the effect of excluding or limiting, the operation of certain copyright exceptions has no effect. These limitations on contracting out should apply to the exceptions for libraries and archives; and the fair use or fair dealing exceptions, to the extent these exceptions apply to the use of material for research or study, criticism or review, parody or satire, reporting news, or quotation.