Fair use

12.9 A move towards an open ended fair use exception, or the new fair dealing exception, would better achieve the objectives of ensuring that cultural institutions can continue to fulfil their public interest missions, while at the same time respecting authorship and creation. The following section explains why s 200AB should be repealed in favour of fair use.

Repeal of s 200AB

12.10 Section 200AB was inserted into the Copyright Act in 2006 to enable copyright material to be used for ‘certain socially useful purposes’, while remaining consistent with Australia’s obligations under international copyright treaties.^[12] The provision sought to give cultural institutions, educational institutions and users assisting those with a disability some of the ‘benefits of fair use’.^[13]

12.11 In respect of cultural institutions, s 200AB provides that use of copyright material is not infringement if it is:

• made by or on behalf of the body administering the library or archive;

• made for the purposes of maintaining or operating the library or archive; and

• not made partly for the purposes of the body obtaining a commercial advantage or profit.^[14]

12.12 The exception is only available if no other exception or statutory licence is available to the user.^[15]

12.13 Importantly, any use under s 200AB is subject to the three-step test language found in the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs Agreement). That is, use of the copyright material must:

• amount to a ‘special case’;

• not conflict with the normal exploitation of the work or subject matter; and

• not unreasonably prejudice the legitimate interests of the owner of copyright.^[16]

12.14 The ALRC’s examination of s 200AB has revealed that the section has not provided the intended benefits to cultural institutions. Many cultural institutions viewed the exception as a ‘failure’, and many have never relied on it.^[17]. The evidence received from cultural institutions was consistent with field research by Dr Emily Hudson, which suggests that s 200AB ‘operates on the margins, mostly as a de facto orphan works provision’.^[18]

12.15 The failure of s 200AB can be traced to the inherently uncertain language of the three-step test.^[19] In particular, stakeholders suggested that uncertainty surrounding the meaning of ‘special case’,^[20] ‘conflict with the normal exploitation’, and ‘unreasonably prejudice the legitimate interest’ has not instilled confidence in the use of the provision.^[21] Some suggested that the choice of language has turned the three-step test into a six^[22] or an eight-step test.^[23]

12.16 Moreover, section 200AB is intended to benefit user groups that are ‘risk averse’, lack legal resources, and that are rarely involved in litigation.^[24] The reluctance of cultural institutions to use s 200AB has meant that no domestic case law has emerged. This has entrenched a narrow interpretation of the section in practice:

If no one is willing to be the test case, it makes it difficult for industry practice to emerge, not just because of an absence of law, but because the muted practice themselves can end up justifying the interpretation of the exception as limited in scope, even if such an interpretation was never intended.^[25]

12.17 At the international level, there has only been one decision interpreting art 13 of the TRIPs Agreement to guide users on the language of s 200AB. A Dispute Resolution Panel of the World Trade Organisation held that the US contravened its obligations under art 13 by exempting retail and restaurants from liability for public performance of musical works by means of communication of radio and television transmissions.^[26] Academics have suggested that it is unclear how the narrow and restrictive reading of the provision by World Trade Organization Panel would apply to uses by libraries, archives or educational institutions.^[27]

12.18 It may have been inevitable that an ambiguous framework unsupported by case law, when targeted at institutions that are generally risk averse and have little access to legal advice, would be doomed to failure.^[28]

12.19 Cultural institutions uniformly supported repeal of s 200AB in favour of fair use.^[29] There was little support for amending the provision.^[30] For the reasons stated below, the ALRC rejects arguments that the problems associated with s 200AB would also arise under fair use.

12.20 The primary contention of those against the repeal of s 200AB in favour of fair use is that flexibility would come at the cost of uncertainty.^[31] For example, the collecting society APRA/AMCOS argued that s 200AB

is now said to be unusable—its flexibility causes so much uncertainty that its intended beneficiaries are paralysed. The result of a similarly flexible and technology neutral exception available to the public at large must either be a similar paralysis, or energetic acceptance resulting in litigation­—neither an attractive outcome.^[32]

12.21 The ALRC does not agree that flexibility has caused problems for the application of s 200AB. Rather, the evidence from cultural institutions accords with the view that s 200AB ‘has failed not because it is a standard, but because it is an overly complex and ambiguous standard’:

The particular drafting of s 200AB has served to oust intuitive understandings and industry norms, and put in their place a series of concepts that neither institutional users nor their professional advisors feel confident to interpret.^[33]

12.22 In the ALRC’s view, fair use would not suffer from the same level of uncertainty. First, the fair use model requires consideration of the fairness factors, which are based on existing factors found in the current fair dealing provisions. Cultural institutions suggested that considerations of fairness are familiar and instinctive to them, and they would therefore be more willing to apply fair use.^[34]

12.23 Secondly, users and courts can be guided by existing international case law, particularly from the US, when interpreting fair use.^[35] US cultural institutions have confidence in relying on fair use, even in the absence of robust case law in the library and archives context:

… libraries look for guidance in fair use cases from other contexts, such as Field v. Google, A.V ex rel. Vanderhye v iParadigms and Perfect 10, Inc v Amazon.com, Inc, with the understanding that analogous fact patterns would likely favour libraries even more than commercial defendants given their socially beneficial missions.^[36]

12.24 Rights holders also suggested that s 200AB could be amended or improved through agreed industry guidelines.^[37] Copyright Agency/Viscopy argued that while there is a trade-off between ‘certainty’ and ‘flexibility’, s 200AB is less uncertain than some think and considered that additional confidence can be achieved through guidelines. However, the ALRC notes that existing guidelines have been developed by various groups to facilitate the use of s 200AB with limited success.^[38] This appears to indicate that the fundamental ambiguity of the language used in s 200AB cannot be resolved by the use of guidelines.

12.25 In contrast, the ALRC foresees greater potential for effective guidelines around the concept of fairness because the starting point is less uncertain.^[39] Indeed, the experience of American libraries and archives suggests that guidelines have been effective in guiding and providing more confidence to cultural institutions in their fair use practices.^[40] Fair use guidelines and industry practice in other sectors have proved successful, and the ALRC sees no reason why this should not be the same for cultural institutions.

12.26 In Chapters 14 and 16, the ALRC notes similar problems relating to s 200AB as it applies to educational use and uses assisting people with disability. Those chapters also argue that fair use is preferable to s 200AB.

Illustrative purpose

12.27 The arguments for having an illustrative purpose for ‘library and archive use’ mirror those for introducing fair use more generally, as described in Chapter 4. Australian copyright law should continue to recognise the needs of cultural institutions to use copyright material, particularly where the uses have little or no effect on the potential market for, or value of, the copyright material. In the ALRC’s view, the case for a flexible exception remains as strong now as it did in 2006, when s 200AB was introduced.

12.28 An illustrative purpose of ‘library and archive use’ would provide a legislative signal to cultural institutions that fair use is intended to emerge as a meaningful part of institutional practices. Given the risk averse nature of cultural institutions, an illustrative purpose is necessary to prevent some of the pitfalls of s 200AB and encourage cultural institutions to make socially beneficial uses of copyright material.

12.29 The fact that a use is made by a library or archive does not necessarily make the use fair. Uses by library and archives that facilitate other illustrative purposes such as research or study, or provide access to people with disability, would more likely to be fair use.^[41] Similarly, uses that are transformative or ‘non-expressive’ might in the circumstances constitute fair use.^[42] The assessment in each instance will need to be determined in accordance with the fairness factors.