International law

10.31 Fair use has been adopted in a number of countries, most notably the US, and is consistent with Australia’s international legal obligations.[25]

10.32 The Committee of Government Experts that prepared the program for the 1967 Berne Conference, included the following paragraph, which was debated, amended and became art 9(2) of the Berne Convention—the three-step test:

It shall be a matter for legislation in the countries of the Union to permit the reproduction in such works

(a) for private use;

(b) for judicial or administrative purposes;

(c) in certain particular cases where the reproduction is not contrary to the legitimate interests of the author and does not conflict with a normal exploitation of the work.[26]

10.33 Professors Sam Ricketson and Jane Ginsburg pointed out that this proposal elicited a wide range of amendments. Some sought to restrict the scope of the exception; others to expand it. France, for example, proposed the substitution of the words ‘individual or family use’ for the words ‘private use’, to avoid the possibility of commercial enterprises claiming that their copying was for private purposes. These differences, Ricketson and Ginsburg stated, ‘perhaps made delegates more ready to consider a proposal advanced by the UK which sought to embrace all possible exceptions within a single generalized exception consisting simply of paragraph (c) of the programme amendment’.[27]

10.34 The provision drafted by the Committee of Government Experts seems to countenance private use exceptions that are not confined by the limitations in paragraph (c)—for example, ‘not contrary to the legitimate interests of the author’. The final provision that was later accepted and became art 9(2), and the fair use exception recommended by the ALRC, are both narrower than the provision drafted by the Committee of Government Experts. The ALRC only proposes that unlicensed private uses be permitted where the use is fair, having regard to the fairness factors. However, it is interesting to note that private use has long been considered a likely subject of exceptions to copyright, and sometimes in terms considerably broader than recommended by the ALRC.