Fair use

10.16 The ALRC recommends that fair use or the new fair dealing exception should be used to determine whether an unlicensed private use of copyright material infringes copyright. Both of these exceptions call for an assessment of the fairness of a particular use of copyright material and the consideration of relevant fairness factors. Applied to a particular private use, both exceptions should have the same result.

10.17 The benefits of fairness exceptions are discussed more generally in Chapter 4. For private uses, they have the particular benefit of being flexible and technology neutral, and better able to account for social norms.

10.18 The fair use provision should include ‘non-commercial private use’ as an illustrative purpose. This is a suitable purpose to include, because many private uses of copyright material are unlikely to have a significant effect on rights holders’ markets. Where they do, they are unlikely to be fair.

10.19 Proposals similar to these recommendations were made in the Discussion Paper.[16] On the whole, stakeholders who supported the introduction of fair use agreed that private uses should be considered under the exception, and supported the inclusion of a private use illustrative purpose.[17] eBay submitted that the ALRC’s approach was ‘a practical solution to the difficult problem created by the existing framework’.[18] Telstra observed that current exceptions for private use of copyright material are

complex, difficult to navigate and out of step with current and likely future customer expectations and practices. Telstra believes that allowing consumers fair access to legal content—in a format, on a device, using a technology and at a time that suits them—will stimulate innovation and continue to grow the content market.[19]

10.20 The Australian Communications Consumer Action Network submitted that

the current private or domestic use exception needs to be replaced with a fair dealing or fair use provision that is technology-neutral and that allows for the increasingly diverse ways that the public might consume and arrange content for their private enjoyment.[20]

10.21 Stakeholders who did not support the introduction of fair use, also said there should not be a private use illustrative purpose in the fair use provision.[21] These stakeholders submitted that fair use or a fair dealing for private use would be too broad and too uncertain; the current exceptions are adequate, and strike the right balance; Parliament should decide on the scope of exceptions, not courts; and exceptions for private use should be carefully prescribed and confined.

10.22 Stakeholders who did not support fair use generally did not discuss what the exception should look like if it were to be enacted, but some expressed particular concern about including private and domestic use as an example in the provision. Some of the arguments for and against fairness exceptions for private uses are discussed further below. In considering these arguments, the ALRC also discusses the application of fair use to private uses.

10.23 Including ‘non-commercial private use’ in the list of illustrative purposes in the fair use provision will signal that a particular use that is non-commercial and private is more likely to be fair than a use which is not. While not determinative, a finding that a use is private will favour fair use.

10.24 However, this does not create a presumption that the use is fair. It will be crucial to consider the fairness factors. These factors may often weigh against a finding of fair use. For example, failing to pay for a private use that is commonly licensed by a rights holder may harm the rights holder’s market. Also, many private uses of copyright material may not be transformative. These factors may weigh against a finding of fair use.

10.25 Nevertheless, generally a private use will be more likely to be fair than a non-private use. Further, as discussed below, there are widespread community expectations that some private uses of legally acquired copyright material should not infringe copyright. In the ALRC’s view, ‘non-commercial private use’ is a suitable illustrative purpose to include in the fair use provision.

10.26 Some called for the scope of the private use concept to be made clear in the Act. However, the ALRC considers that the meaning of the phrase is sufficiently clear, and should not need to be defined in the Act. For both fair use and fair dealing, the listed purposes should be given a broad interpretation, and the focus of the fairness analysis should be on whether the use is fair, having regard to the fairness factors.

10.27 In the Discussion Paper, the ALRC proposed an illustrative purpose for ‘private and domestic use’. The ALRC now recommends that the purpose be ‘non-commercial private use’, without the word ‘domestic’. The ALRC does not see a great difference in the two phrases; they are intended to capture the same type of use. However, although many private uses will no doubt continue to occur in the domestic sphere—in the home—many may not. Omitting the word domestic should avoid the suggestion that a private use must occur on domestic premises.[22] The popularity of remote and mobile computing would make such a limitation anachronistic.

10.28 By omitting the word ‘domestic’ from this illustrative purpose, the ALRC also does not mean to imply that domestic uses among family members or members of the same household cannot be, or are unlikely to be, fair use. The word ‘private’ is intended to differentiate the use from public uses, rather than to privilege uses that are confined entirely to the one person.[23]

10.29 Fair use could be enacted without including an illustrative purpose for private use. The US fair use provision and the fair use provisions in other countries do not have an illustrative purpose for private use. Private uses can be considered under these fair use exceptions anyway, and some have been held to be fair. Perhaps most notably, the private copying of broadcast television on home video recorders was held to be fair in the US Supreme Court in 1984,[24] 22 years before a time shifting exception was enacted in Australia.

10.30 For reasons set out below, the ALRC considers that including ‘non-commercial private use’ in the list of illustrative purposes would represent an important clarification of the fair use doctrine. It is not intended to substantially broaden the scope of fair use, as it applies in the United States.