Fair use is compatible with moral rights

4.131 The Arts Law Centre stated that the introduction of fair use would undermine moral rights. However, the ALRC considers that fair use is compatible with recognising the moral rights of creators. Further, it is no less compatible with moral rights than many existing exceptions, such as the fair dealing exceptions for parody and satire.[189]

4.132 The application of moral rights themselves depend upon a range of factors determining reasonableness in particular circumstances.[190] The right of attribution afforded by the Australian legislation specifically takes this into account. For example, s 193 of the Copyright Act refers to the traditional legal concepts of author and work. It does not prescribe a narrower construction, but confers a right of attribution on all authors of copyright works. Section 195 requires that the author of the work may be identified by any reasonable form of identification, noting that what is reasonable will depend on the circumstances. It may be reasonable not to identify the author, depending on a range of factors.[191] The condition of reasonableness was specifically included to take into account the reality that cultural practices and economic contexts where attribution may be possible will vary.[192]

4.133 Fair use does not dispense with moral rights, any more than the current fair dealing provisions do. Guidelines and jurisprudence may also be expected to be developed to clarify what is good practice in regard to respecting moral rights.