10.110 If neither a fair use, nor a fair dealing for private use, exception is enacted in Australia, then the ALRC suggests that the existing private copying exceptions in the Copyright Act should be consolidated and simplified. Such an exception would not refer to fairness factors, but would instead simply describe the circumstances in which a private or domestic copy might be made.
10.111 The Law Institute of Victoria submitted that, if fair use is not enacted, ‘then a separate, single exception should be introduced, along the lines of Canada’s Copyright Modernization Act 2012 (Can)’. Rather than a separate format shifting exception for each type of work (one for films, one for music, etc), each with its own conditions, Canada’s Copyright Act contains only one exception for reproductions for private purposes. This exception applies to ‘a work or other subject-matter or any substantial part of a work or other subject-matter’.
10.112 It has been argued that fair use may not allow for a sufficiently wide range of private uses—particularly for uses that are non-transformative, for example copying an entire film or television program from one format to another, for personal use. Some have suggested broader exceptions that apply to all private uses, without an assessment of fairness. However, in the ALRC’s view, without a fairness test, such exceptions may be too broad and may unfairly harm rights holders’ interests.
The ABC supported specific exceptions for private use, rather than fair use, but said it would consider supporting ‘the consolidation of the various format-shifting exceptions into a single technology-neutral format-shifting exception’ and it ‘supports the extension of section 111 to cover ephemeral transmissions, such as simultaneous online streams of broadcasts (‘simulcasts’) and live webcasts by broadcasters’: ABC, Submission 775.
Law Institute of Victoria, Submission 198.
Copyright Modernization Act, C-11 2012 (Canada) s 29.22(1).
See, eg, A Pavel, ‘Reforming the Reproduction Right: The Case for Personal Use Copies’ (2009) 24 Berkeley Technology Law Journal 1615, 1630.