10.1 The fair use and new fair dealing exceptions are suitable exceptions to apply to determine whether an unlicensed private use of copyright material infringes copyright.
10.2 These fairness exceptions are considerably more versatile than the existing exceptions for private use, and they are not confined to technologies or practices that change rapidly. They also allow for the consideration of social norms, and permit productive uses that do not harm rights holders by usurping their markets.
10.3 The existing exceptions for time shifting broadcasts and format shifting other copyright material should be repealed.
10.4 The ALRC also recommends that ‘non-commercial private use’ should be an illustrative purpose in the fair use exception, to signal that many private uses may be fair. This does not mean that all private uses are fair, nor will it create a presumption that a private use is fair. Sometimes, a private use will harm a market that a rights holder alone should be entitled to exploit, and will not be fair. But a private use is more likely to be fair than a non-private use. Some unlicensed private uses are also very common, and widely thought to be fair. ‘Non-commercial private use’ is therefore a suitable purpose to include in the list of purposes in fair use.
10.5 If fair use is not enacted, the Copyright Act should provide for a new fair dealing exception that includes ‘non-commercial private use’ as a prescribed purpose. Applied to a private use, this fair dealing exception will have the same outcome as fair use.
10.6 Private use is a much narrower concept than social use. Some social uses of copyright material—for example, in creating and sharing user-generated content—may be fair in some circumstances, particularly when transformative. Social uses can also be considered under the fair use exception. However, the ALRC does not recommend that ‘social uses’ be an illustrative purpose in the fair use exception, because often social uses will harm rights holders’ markets and will not be fair use.
10.7 Importantly, piracy—such as exchanging music, films and television programs with strangers—is neither private use, nor fair use. The exceptions in this Report do not permit or condone piracy.