16.35 The ALRC recommends that, if fair use is not enacted, the Copyright Act should be amended to introduce a new fair dealing exception. This would combine existing fair dealing exceptions and introduce new prescribed purposes which may be held to be fair dealing. The fair dealing exception would also require the fairness factors to be considered in determining whether a particular use was fair.
16.36 If there is a new fair dealing exception, access for people with disability should be a prescribed purpose. This would have the same advantages as fair use—it would allow people with disability, other people assisting them, and institutions not covered by the statutory licence, to copy and format shift, as long as these activities were for the purpose of access. The fairness factors would apply, and uses that compete with a commercially available product would be unlikely to be fair.
Recommendation 16–1 The fair use or new fair dealing exception should be applied when determining whether a use for access for people with disability infringes copyright.