12.46 The ALRC also recommends that, if fair use is not enacted, the Copyright Act 1968 (Cth) should be amended to introduce a new fair dealing exception that would combine the existing fair dealing exceptions and introduce new prescribed purposes, including ‘library and archive use’. This new fair dealing exception should supplement, and not replace, specific exceptions relating to preservation copying and document supply.
12.47 The exception would require consideration of whether the use is fair, having regard to the same fairness factors that would be considered under the fair use exception. Applying the fair use or amended fair dealing to library or archive uses should, therefore, produce the same result.
12.48 If the new fair dealing exception is implemented, consideration may need to be given to how ‘library and archive use’ should be further defined. One option is to define library or archive use in similar terms to s 200AB. That is, uses made ‘by or on behalf of the body administering a library or archive’ for the ‘purpose of maintaining or operating the library or archives (including operating the library or archive to provide services of a kind usually provided by library or archives)’. The ADA and ALCC submitted that ‘a fair dealing provision should ensure that it covers the needs of the users, scholars, researchers, and creators looking to make use of library and archive collections’. Others suggested a more inclusive definition of ‘library and archive’ to take into account ‘cultural heritage’ or the ‘public interest purposes of cultural institutions’.
12.49 The Australian Government may wish to consult stakeholders further on the appropriate definition of ‘library or archive use’ for the purposes of the new fair dealing exception, noting in particular the National Cultural Policy, which recognises the need to ensure both dissemination and access to cultural material, as well as adequate protection for copyright owners.
Recommendation 12–1 Section 200AB of the Copyright Act should be repealed. The fair use or new fair dealing exception should be applied when determining whether uses by libraries and archives infringes copyright.
See Ch 12.
ADA and ALCC, Submission 586.
For example, the National Archives of Australia submitted that ‘cultural heritage’ could be an illustrative purpose of fair use to cover institutions ‘making accessible unique culturally and historically significant material’: National Archives of Australia, Submission 595.
ADA and ALCC, Submission 868.