5.161 If Australia adopts the new fair use exception, then it is critical to determine the relationship with exceptions currently in the Copyright Act. It has been said that the issue of how fair use would fit with the existing exceptions and statutory licences was considered ‘very little’ during the earlier debates.
5.162 One rationale for retaining specific exceptions is a desire to retain certainty, which can reduce transaction costs, although care should be taken not to create problems of statutory interpretation where an illustrative purpose and a specific exception may seem to overlap. The merits of retaining particular specific exceptions in certain areas are detailed in other chapters.
5.163 Some stakeholders opposed to fair use generally, also opposed the repeal of certain exceptions. However, others took the view that, if fair use were enacted, the existing fair dealing exceptions, or other specific exceptions such as s 200AB, should be repealed.
5.164 ARIA observed that, in some cases, exceptions in Australian law are more generous than those found in US law. In this context, the Australian Copyright Council stated:
If the ALRC’s thesis is that flexibility will make exceptions to copyright more appropriate for the digital economy, then this flexibility should clearly apply in both directions. That is, while a flexible standard may be broader than existing exceptions, it may also be narrower in some instances.
5.165 The ALRC considers that it is preferable to introduce a model that replaces many of the existing exceptions, particularly where it is anticipated that these existing excepted uses would be covered by the new fair use exception. Repeal of specific exceptions is proposed, in part, in the expectation that most uses now covered would remain permitted under a developing Australian fair use law.
5.166 The ALRC considers that its approach would reduce the length and detail of the Copyright Act and should assist in mitigating statutory interpretation problems. Some stakeholders agreed. For example, Communications Alliance submitted that ‘it would be confusing and unnecessary to have two separate parts of the Copyright Act providing exceptions to copyright’. Another stakeholder expressed concern about a ‘hybrid’ approach, in which fair use is merely added to the existing suite of specific exceptions:
With so many detailed exceptions, would it be anticipated that these be the primary focus for judges and users, with fair use as an occasional back-up? Or would fair use have more of a meaningful role? We support the emergence of fair use as the predominant exception in Australia and are concerned that excessive doubling up between fair use and other exceptions might cause confusion about the interaction between different provisions, and only serve to muddy the signals from government as to the role for fair use.
5.167 It was also suggested that problems of statutory interpretation might be avoided through the use of a ‘no-limitation’ provision—‘a provision stating that fair use does not limit, and is not limited by, any other exception’.
Repeal of the existing fair dealing and professional advice exceptions
5.168 The ALRC recommends the repeal of the existing fair dealing exceptions and the professional advice exceptions in ss 104(b) and (c) and the application of either the fair use exception, or the new fair dealing exception, if fair use is not enacted. The ALRC considers the fair use exception should be applied when determining whether a use for one of the existing fair dealing purposes, and ‘professional advice’ more broadly, infringes copyright.
Recommendation 5–4 The Copyright Act should be amended to repeal the following exceptions:
(a) ss 40, 103C—fair dealing for research or study;
(b) ss 41, 103A—fair dealing for criticism or review;
(c) ss 41A, 103AA—fair dealing for parody or satire;
(d) ss 42, 103B—fair dealing for reporting news;
(e) s 43(2)—fair dealing for a legal practitioner, registered patent attorney or registered trade marks attorney giving professional advice; and
(f) ss 104(b) and (c)—professional advice exceptions.
The fair use or new fair dealing exception should be applied when determining whether one of these uses infringes copyright.
5.169 Elsewhere, this Report contains recommendations to repeal a range of specific exceptions, if fair use is enacted. The exceptions are as follows:
in Chapter 10 (‘Private Use and Social Use’): ss 47J, 109A, 110AA, 111;
in Chapter 11 (‘Incidental or Technical Use and Data and Text Mining’): ss 43A, 111A, 43B, 111B, 200AAA;
in Chapter 12 (‘Libraries and Archives’): ss 51A, 51B, 110B, 110BA, 112AA; and
in Chapter 14 (‘Education’): ss 28, 44, 200, 200AAA, 200AB.
5.170 On further review by the Australian Government, there may be other exceptions, including in other statutes, which should also be repealed, if fair use is enacted.
M Wyburn, ‘Higher Education and Fair Use: A Wider Copyright Defence in the Face of the Australia—United States Free Trade Agreement Changes’ (2006) 17 Australian Intellectual Property Journal 181, 208.
E Hudson, ‘Implementing Fair Use in Copyright Law: Lessons From Australia’ (2013) 25 Intellectual Property Journal 201, 226.
See Ch 12 (‘Libraries and Archives’) and Ch 15 (‘Government Use’).
For example, Australian Film/TV Bodies, Submission 739; Hillsong, Submission 671 (‘the suggested repealing of many of the provisions is an overreaction and will create more uncertainty around the law than currently exists’); Screenrights, Submission 646; Print Music Publishers Group, Submission 627.
For example, Cricket Australia, Submission 700; Australian Copyright Council, Submission 654. However, others were opposed and submitted that the fair dealing exceptions should be retained alongside any fair use exception: Free TV Australia, Submission 865.
Australian Copyright Council, Submission 654.
ARIA, Submission 241.
Australian Copyright Council, Submission 654.
See the fourth framing principle in Ch 2: ‘providing rules that are flexible, clear and adaptive to new technologies’.
R Burrell, M Handler, E Hudson, and K Weatherall, Submission 716; Communications Alliance, Submission 653; R Xavier, Submission 531.
Communications Alliance, Submission 653.
The ABC favoured a hybrid model: ‘the ABC considers there may be some benefit in a hybrid model. That is, a model where specific fair dealing and free exceptions are articulated, but also where there is a residual open ended exception for developing uses of copyright material where the use does not conflict with the normal exploitation of the material and does not unreasonably prejudice the legitimate interests of the copyright owner. This would allow new fair dealing and free use exceptions to develop in the future’. ABC, Submission 210.
R Burrell, M Handler, E Hudson, and K Weatherall, Submission 716.
R Xavier, Submission 531.
One submission suggested Patents Act 1990 (Cth) s 226: R Burrell, M Handler, E Hudson, and K Weatherall, Submission 716.
Some submissions gave considerable thought to which exceptions could be repealed if fair use is enacted, and which could be retained. See Ibid (revised lists including their rationale); R Burrell, M Handler, E Hudson, and K Weatherall, Submission 278 (earlier lists).