5.1 The ALRC recommends a fair use exception with a non-exhaustive list of four fairness factors to be considered in assessing whether use of another’s copyright material is fair and a non-exhaustive list of eleven illustrative purposes. This chapter outlines these key aspects of the fair use exception, including the ALRC’s conclusions on how the fairness factors and illustrative purposes should be interpreted.
5.2 The structure and interpretation of s 107 of the United States Copyright Act 1976 provides an appropriate model for an Australian fair use exception, in providing a broad, flexible standard based on fairness factors.
5.3 This chapter also discusses sources of guidance for courts and users about the application of the fair use exception. The relevance of existing Australian case law, case law in other jurisdictions, and the development and use of industry codes and protocols are discussed.
5.4 The framing of the new exception, existing case law in Australia and other jurisdictions, and the development of industry codes and protocols should counter concerns about possible uncertainty and transaction costs associated with implementing fair use.
5.5 If fair use is enacted, many of the existing specific exceptions will be repealed as the fair use exception, or the new fair dealing exception recommended in Chapter 6, should be applied when determining whether relevant uses infringe copyright. The ALRC recommends the repeal of the existing fair dealing exceptions and the exceptions for professional advice. Recommendations for repeal of other exceptions are discussed in other chapters, and this chapter provides a summary of the recommended changes.