Commercial use

10.72 Private uses of copyright material that will be fair use will also usually be non-commercial. Arguably, a private use will necessarily be a non-commercial use. Although it may be possible for a truly private use to be commercial, this will be rare.

10.73 Some stakeholders submitted that non-commerciality should be a mandatory condition of any private use exception (that is, if the use is commercial, the exception necessarily does not apply).[63] The draft private copying exception being considered in the UK only applies if the copy is made ‘for that individual’s private use for ends that are neither directly nor indirectly commercial’. Many stakeholders were particularly concerned about people posting material to commercial social networks and thinking that this was private.[64] As discussed below, sharing content online with large groups of people should not be considered a private use.

10.74 Under fair use, a commercial use is less likely to be fair, but the commerciality is not determinative. The ALRC recommends that the illustrative purpose for this type of use be ‘non-commercial private use’. The possible tautology is intended to remove doubt about the kind of activity the ALRC considers a good example of fair use.

10.75 This does not mean that time shifting and format shifting by commercial enterprises can never be fair. Such uses will not be private or non-commercial, and so are less likely to be fair, but in some circumstances they may be fair.

10.76 Many commercial third parties facilitate non-commercial private uses.[65] The fact that a commercial third party facilitator is not itself acting for a private non-commercial purpose, and so will not be covered by the illustrative purpose for private use, does not mean that such uses will necessarily be unfair. Unlike fair dealing exceptions, fair use is not confined by the listed purposes.