Guidance to counter uncertainty and expense

5.133 While it could be said that ‘the uncertainty associated with fair use has been greatly overstated’,^[194] to counter concerns about uncertainty and expense, stakeholders considered there should be sufficient guidance on the application of a fair use exception.

5.134 The fair use exception itself contains some guidance for users of copyright material and the courts based on the fairness factors and illustrative purposes. Further guidance may be found in:

• existing Australian case law;
• other relevant jurisdictions’ case law; and
• any industry guidelines or codes of practice that are developed.

Relevance of existing Australian case law

5.135 If a new fair use exception is enacted, existing Australian case law, particularly that pertaining to fair dealing, would be of relevance and provide guidance to the courts. A number of stakeholders shared this view.^[195] The Law Institute of Victoria, for example, submitted that, given the ‘similarity of the US fair use factors with the Australian factors for determining fair dealing, our jurisprudence on when a dealing is fair may also be of assistance’.^[196]

5.136 While drawing on existing authority, a new fair use exception should not be seen as merely codifying the state of the law:

An approach that sought to shackle a fair use defence to the pre-fair-use state of the law would be regrettable, given the manifold problems we and others have identified with both the current drafting of the defences and their interpretation by Anglo-Australian courts.^[197]

5.137 Some were concerned that the enactment of fair use ‘may result in arguments that the current fair dealing exceptions have been relaxed’.^[198] SBS, Commercial Radio Australia and the ABC expressed concern that any proposal to include the fair dealing exceptions for the purposes of reporting news, criticism or review, and parody or satire within a fair use provision would mean that these exceptions would be ‘open to re-litigation’ and their operation may be restricted.^[199]

5.138 The ALRC considers these concerns to be overstated. First, any review of Australian fair dealing jurisprudence shows that such litigation occurs from ‘time to time’,^[200] but is relatively scare,^[201] with some of the exceptions, such as those concerning parody or satire, never having been litigated at all. The ALRC is not convinced that the ‘floodgates’ will be opened and uncertainty will ensue. Secondly, concerns that the scope of the existing fair dealing exceptions may be restricted seem to be predicated on a misunderstanding of the role that a fairness assessment already plays in determining the application of the existing fair dealing exceptions.

Relevance of other jurisdictions’ case law

5.139 It is well-established that foreign case law may be used by Australian courts, to the extent that the reasoning of such decisions is persuasive.^[202] If fair use is enacted, the ALRC would expect that Australian courts would look to US case law, in particular, as one source of interpretative guidance, but would not be bound by such decisions.

5.140 A number of stakeholders submitted that it would be helpful for Australian courts to draw upon US jurisprudence and, to a lesser extent, other countries’ jurisprudence.^[203] The Law Council submitted:

as a relatively small country, the amount of litigation in relation to copyright should also be relatively small. Drawing upon the jurisprudence of the United States would permit Australia to take advantage of the intellectual and financial investment in the creation of that jurisprudence over many years without the disadvantage of having to expend significant judicial resources in the development of a completely stand alone Australian view of fair use.^[204]

5.141 However, some stakeholders objected to the use of other jurisdictions’ case law in this way. In their view:

• it would be a difficult task, given that US jurisprudence reflects different legal frameworks than those found in Australia;^[205] and
• the scope and applicability of the guidance will be limited as ‘a fair use exception has been introduced in only a small handful of countries throughout the world’.^[206]

5.142 Specific differences identified included that the US has:

• a Bill of Rights, which expressly protects freedom of speech;^[207]
• express articulation in the US Constitution of the purpose of copyright;^[208] and
• no express moral rights protection akin to that in Australia.^[209]

5.143 The Motion Picture Association of America (MPAA) submitted that, ‘whether, and to what extent, the Australian courts, in applying a new “fair use-like” provision, should be guided by US precedent’ was ‘the inescapable question’.^[210] Other stakeholders expressed concern over what they referred to the ‘transplantation’ of US law, ^[211] and future Australian ‘dependence’ on US law.^[212]

5.144 Such comments misunderstand the jurisprudential implications of introducing a fair use exception. Australian courts will be able to draw upon approaches taken in other relevant jurisdictions, primarily that of the US, but would not, in any way, be bound by them.^[213] Some stakeholders understood this. Google submitted:

This is not to say, of course, that US or other foreign jurisprudence would be exported in its entirety to Australia; but rather that Australian judges would not necessarily be starting with a blank slate when deciding fair use cases.^[214]

5.145 Australia would not necessarily be adopting the outcome of every US court case:

Australian courts will no doubt continue to benefit from seeing how their American counterparts have dealt with similar questions in the past. However, United States jurisprudence will only persuade to the extent that it is persuasive.^[215]

5.146 Some rights holders took the view that this would mean there would be ‘uncertainty’ because ‘[t]he law of Australia would need to make that decision on what is fair or not, regardless [of] what another jurisdiction has proclaimed’.^[216]

5.147 Australian courts look to, and at times draw from, precedent developed in other jurisdictions where they consider it to be helpful.^[217] As one stakeholder observed:

Federal Court and High Court justices routinely consider leading United States cases in the process of deciding Australian law according to Australian standards. In areas where standards of fairness are relatively similar, we would expect divergence to be minimal. … However, it would not be surprising if Australian courts diverged from American ones in cases that pitted moral rights against freedom of expression.^[218]

5.148 The Law Council submitted that it is ‘imperative’ that courts and practitioners be given ‘strong encouragement’ to look to how fair use is applied in other jurisdictions, particularly in the US.^[219] Some submitted that it would be helpful for this to be specified,^[220] possibly by an express statement in the relevant Explanatory Memorandum.^[221]

5.149 In the Discussion Paper, the ALRC expressed its view that an express statement about the extent to which US or other countries’ jurisprudence should be taken into account by Australian courts is unnecessary. While some submissions agreed with this approach,^[222] others had concerns.

5.150 Some stakeholders took the view that an express statement in extrinsic materials would:

• help to direct judges to the extensive fair use jurisprudence that has been developed in the US;

• provide legal advisors with ‘a greater degree of comfort’ when advising clients in the absence of Australian case law directly on point; and

• help clarify, referring to ss 15AA and 15AB of the Acts Interpretation Act 1901 (Cth), that the purpose of introducing fair use is to afford a flexible, open-ended defence focusing on fairness and is ‘not obscure, or bound up with intractable questions of the overarching purpose of copyright law’.^[223]

5.151 One possible model is the Explanatory Memorandum to the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (Cth), which expressly stated that some concepts introduced by that Act into patent law were adopted from and intended to be interpreted in accordance with UK or US developments.^[224]

5.152 The ALRC considers that it would be helpful for the Explanatory Memorandum to contain an express statement that the scope of the Australian provision can be informed by US and related foreign law. This would assist in countering concerns about uncertainty.

Industry codes of practice and guidelines

5.153 Another way in which some certainty could be sought in a fair use regime is by the development of industry guidelines and codes of practice.^[225] Some stakeholders, including the MPAA, supported this idea.^[226] Google observed that the Documentary Filmmakers’ Statement of Best Practices in Fair Use, which has been developed in the US, has provided enough certainty for major insurance companies to accept the statement as a basis for errors and omissions insurance for fair use claims.^[227]

5.154 Some stakeholders put the opposite view: that industry guidelines and codes of practice cannot play a useful role in creating additional certainty about the operation of fair use. In their view:

• the need for guidelines is evidence of the complexity and uncertainty inherent in a fair use exception;^[228]

• protocols^[229] and guidelines may not be useful, given that they are not binding^[230] or enforceable,^[231] particularly when parties are not located or regulated in Australia;^[232]

• the negotiation of such guidelines in Australia would be difficult,^[233] with some sports bodies noting their own experience in this regard,^[234] a number of stakeholders noting the fact that negotiations between copyright owners and carriage service providers had not yet resulted in an industry code of practice in respect of infringement on their networks,^[235] and some submitting that it is unclear to what extent parties would be able to agree on the application of fair use,^[236] given their view that ‘fair use allows very substantial latitude for disagreement’;^[237]and

• experience in the US suggests that attempts to agree on guidelines to facilitate certainty about the application of fair use have been of limited success.^[238]

5.155 However, some stakeholders who were opposed to the enactment of fair use in Australia, nevertheless saw some role for codes to play in the copyright context,^[239] including with respect to fair use.^[240]

5.156 Further, submissions from two American entities expressed the view that guidelines can play a positive role with respect to fair use.^[241] For example, the Kernochan Center for Law and Media and the Arts within the Columbia Law School submitted that ‘guidelines can be useful, provided they are developed with input from rightsholders and users, are reasonably clear, and not unduly rigid’.^[242] In its view, the development of such guidelines was ‘a worthwhile goal’, and noted that ‘recent developments indicate that it is possible to arrive at multilateral agreements concerning the use of copyrighted works’.^[243]

5.157 There were differing views about the form such guidelines or codes should take. APRA/AMCOS submitted that they ‘should be mandated by law, should take into account the views of both owners and users, and should be subject to the jurisdiction of the Copyright Tribunal’.^[244] However, some sports bodies submitted that negotiating binding industry codes can be ‘extremely difficult’, time consuming,^[245] and that the results can be unsatisfactory.^[246] The AFL submitted that:

The ‘compromises’ reached as part of industry arrangements are often a function of bargaining power, timing and political pressure, rather than an appropriate balancing of rights.^[247]

5.158 Some US-based copyright academics observed that:

The United States experience under the Copyright Act of 1976 indicates voluntary guidance documents can be a means by which to achieve greater levels of certainty, and provide predictability and normative guidance to users.^[248]

5.159 The ALRC considers that it is best left to the market to develop relevant guidelines as industry participants consider necessary.^[249] This aligns with a number of the ALRC’s recommendations for reform, which are premised on the value of market-based, deregulatory solutions.

5.160 Many stakeholders have already reached agreed understandings or developed guidelines in respect of the use of copyright material in view of certain exceptions. For example, National and State Libraries Australasia submitted that it has been developing standard practices and industry guidelines ‘for several years’,^[250] and Google observed that guidance was developed on the operation of s 200AB after the commencement of that provision.^[251] Free TV Australia submitted that:

In the areas where broadcasters rely on the fair dealing provisions there is a strong and well-established understanding between various stakeholders as to the balance that the current system provides between the interests of copyright owners and users.^[252]