Where fair use might apply

12.30 Fair use is expected to cover uses that are not covered by specific exceptions relating to preservation and document supply, discussed below. This section briefly highlights how fair use might apply in relation to certain uses made by cultural institutions.

Mass digitisation

12.31 Fair use may allow cultural institutions to undertake mass digitisation projects in some instances. For example, in Authors Guild v Hathi Trust, the District Court for the Southern District of New York found that the defendant’s mass digitisation of works in its collections to allow its members to conduct full text searches across the entire collection and to allow print-disabled patrons to access the collection to be fair use.[43] The use of copyright material was found to be transformative in that it provided access for print-disabled individuals, a purpose that was not served by the original work.[44] The provision of access for print-disabled individuals did not have a significant impact on a market.[45]

12.32 In the ALRC’s view, mass digitisation projects are more likely to be fair use where they facilitate research and study, are transformative in nature, use material in the public domain, or are undertaken for non-commercial reasons.

Extended collective licensing

12.33 In the Discussion Paper, the ALRC asked whether voluntary extended collective licensing (VECL) should be pursued to help cultural institutions engage in mass digitisation projects.[46] Cultural institutions were opposed to VECL for a number of reasons. First, some suggested that materials that they might seek to digitise have little or no economic value (such as war diaries, government records, correspondence from individuals to government) that would warrant licensing.[47]

12.34 Secondly, a number of institutions were concerned to preserve their relationships with creators and their descendants, arguing that VECL would detract from rights holders’ ability to give direct licences.[48]

12.35 The Copyright Licensing Agency (CLA), noted that VECL was not ‘necessarily a panacea to the issue of mass digitisation’, and that

the uses to which such digitised collections could be put, the fees to be payable for such usage, and the restrictions imposed to prevent any undermining of the creative industries are matters requiring a fuller discussion and an greater understanding of user needs and intentions.[49]

12.36 Burrell and others noted that, while collective licensing may be one way to facilitate mass digitisation, they queried whether VECLwas suitable, arguing that

[extended collective licensing] has the potential to implicitly reject the role for fair use which we believe would be conceding too much in terms of the capacity for a general exception to cover some aspects of large scale digitisation.[50]

12.37 Others noted that, if VECL were to be introduced, appropriate protection for rights holders would need to be considered, including the ability to opt out.[51]

12.38 The ALRC considers that VECL is not necessary to facilitate mass digitisation by cultural institutions. The combination of reforms recommended in this Report, including fair use, a limitation on remedies for the use of orphan works, and the expansion of the preservation copying provisions for cultural institutions, provide an adequate framework to cover mass digitisation projects.

12.39 If there are limited instances where cultural institutions consider VECL to be appropriate, the ALRC considers that other options may be pursued. For example, as noted by Australian copyright academics, ‘there are already examples of blanket licenses being negotiated between Australian cultural institutions and copyright collectives for online uses of works’.[52] Rights holders suggested that blanket licensing, especially for musical works, was working well in allowing users to communicate material online.[53] Copyright Agency/Viscopy submitted that blanket licences commonly provide for ‘indemnity for content that are not expressly excluded, rather than requiring licensees to check the mandate in each case’.[54] These options may be more efficient than VECL, as highlighted in Chapter 13.

12.40 This does not mean, however, that VECL is not suitable for other contexts. In the UK, ECL will become available to help streamline rights clearance where direct licensing is not possible. However, a collection society must apply and demonstrate that it represents a ‘significant number of rights holders in relation to the woks covered by the scheme and has the support of those members of the application’. In effect, ECL will only be available where there is strong existing support for collective licensing.[55]

Unpublished works

12.41 A number of stakeholders called for a reduction in the term of copyright to allow the digitisation and communication of unpublished material.[56] Works that are never published risk remaining in copyright in perpetuity and their productive uses may be lost to users and copyright holders.[57] For example, the National Library of Australia (NLA) estimated that there are 2,041,720 unpublished items in its collection, use of which would support the ‘general interest of Australians to access, use and interact with content in the advancement of education, research and culture’.[58]

12.42 The fact that a work is unpublished does not rule out the case for fair use. Guidance can be taken from the US fair use provision, which specifically recognises that ‘the fact that a work is unpublished shall not of itself bar a finding of fair use if such a finding is made upon consideration of all the above factors’.[59] Similarly, under the ALRC’s model, the fact that a work is unpublished does not determine the fair use question. Whether a use is fair will be determined by the fairness factors, including the nature of the use, the amount that is copied, and the impact on any potential market for the material.

Harvesting of Australian web content

12.43 The NLA called for a specific exception that would allow it to harvest and preserve Australian internet content. It advised that, despite having no exception to rely on, it has conducted annual harvests of Australian web material since 2005, gathering five billion files and 200 terabytes of data. In harvesting, the library ‘posts information for website owners on the Pandora website and places a link to this notice in the web harvest robot’s request to the targeted servers’. That is, the library does not contact the owners before harvesting the material. Notification of the harvesting is done at the time the website is harvested.[60]

12.44 The NLA noted that responses from website owners have been minimal.[61] Despite this, the NLA reported that because it has effectively copied the content without the copyright owner’s permission, it has not permitted public access to the data.

12.45 Fair use may be used to facilitate such activities. To the extent that the NLA has not received many takedown requests, this might suggest that copyright holders consider such harvesting to be fair use. Having regard to the fairness factors, permitting access for non-commercial reasons such as research or study, or allowing ‘data mining’ of the pages may also be fair use.[62]