10.85 If fair use is not enacted, the ALRC recommends that an alternative new fair dealing exception be introduced. This exception should include ‘non-commercial private use’ as one of the prescribed purposes.
10.86 This fair dealing exception would require consideration of whether the use is fair, having regard to the same fairness factors that would be considered under the general fair use exception. Applying either of the two exceptions to a private use should therefore produce the same result.
10.87 As discussed in Chapter 6, the new fair dealing exception leaves less room for unlicensed third parties to use copyright material in circumstances where they facilitate private uses. This is because the new fair dealing exception is confined to uses for specified purposes. Sometimes the purpose of a third party use will be nearly indistinguishable from the purpose of the end user. At other times, the third party use may be quite different.
10.88 Some stakeholders were concerned that fair use might permit third parties to make copies on behalf of their customers, for their customer’s private use. This would ‘allow unlicensed entities to profit at the expense of those who have invested in the creation of Australian content’. ASTRA said it would ‘strongly oppose’ reforms that permitted such third parties ‘to build a business model using copyright material based on exceptions specifically created only for private or domestic use’.
10.89 While many of these third party uses may not be fair, a general fair use exception is preferable to the new fair dealing exception, because with fair use, the question of fairness can at least be considered. Uses for purposes not listed in the provision are not automatically excluded.
10.90 Copyright law that wishes to allow for the development of new technologies and services should not presumptively exclude uses of copyright material for particular purposes, without asking whether the use would be fair. For this reason, the ALRC prefers the general fair use exception. However, a flexible exception that requires consideration of key principles, even if confined to a specified purpose, is still preferable to the current specific exceptions in the Copyright Act.