The illustrative purposes

5.110 The fair use exception should contain a non-exhaustive list of illustrative uses or purposes. The fair use exceptions in the US and other countries that have enacted fair use or extended, open-ended fair dealing exceptions, all include illustrative purposes or examples. The ALRC’s recommended list of illustrative purposes would be specifically Australian, but has parallels to those listed in other jurisdictions’ statutes.

5.111 The illustrative purposes in the US fair use exception are set out in the preamble to the Copyright Act. The preamble provides, in part:

the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.^[141]

5.112 The US Supreme Court has said that:

The text employs the terms ‘including’ and ‘such as’ in the preamble paragraph to indicate the ‘illustrative and not limitative’ function of the examples given … which thus provide only general guidance about the sorts of copying the courts and Congress most commonly found to be fair uses.^[142]

5.113 In Harper & Row v Nation, the US Supreme Court commented further on the function of the preamble:

News reporting is one of the examples enumerated in §107 to ‘give some idea of the sort of activities the courts might regard as fair use under the circumstances’. This listing was not intended to be exhaustive, or to single out any particular use as presumptively a ‘fair’ use. The drafters resisted pressures from special interest groups to create presumptive categories of fair use, but structured the provision as an affirmative defense requiring a case-by-case analysis. ‘[W]hether a use referred to in the first sentence of section 107 is a fair use in a particular case will depend upon the application of the determinative factors, including those mentioned in the second sentence’.^[143]

5.114 The ALRC intends the illustrative purposes in an Australian fair use exception to serve this same function. The listed purposes are illustrative, not exhaustive. The fact that a particular use falls within one of the broader categories of ‘illustrative purposes’ will tend to favour a finding of fair use. But this does not necessarily mean the particular use is fair. It does not even create a presumption that the use is fair. A consideration of the fairness factors is crucial.

5.115 A number of stakeholders approved including a list of illustrative purposes in the fair use exception.^[144] For these stakeholders, the illustrative purposes were seen to provide helpful guidance on the application of the provision^[145] and to reduce uncertainty.^[146] In the Discussion Paper, the ALRC proposed nine illustrative purposes.^[147] Some stakeholders supported the content of this list,^[148] or at least some of the illustrative purposes listed.^[149]

5.116 The ALRC’s list of illustrative purposes includes purposes that are:

• currently the subject of purpose-based exceptions—for example, the existing fair dealing purposes; and

• not currently the subject of express unremunerated use exceptions in the Copyright Act—for example, quotation.

5.117 Stakeholders supported this approach, particularly with respect to consolidating the existing fair dealing provisions into a more general fair use exception.^[150] For example, the Law Council approved of a fair use model that ‘would include reference to the existing specific copyright exceptions which would then act as examples to courts of the types of activities that constitute fair use’.^[151]

Concerns about certainty

5.118 Some stakeholders expressed concern about lack of certainty. Those who opposed the enactment of fair use in Australia criticised the proposed illustrative purposes and submitted that a non-exhaustive list does not promote certainty.^[152] Others suggested some ways in which more certainty could be obtained.^[153]

More detailed illustrative purposes

5.119 Some suggested that more detail should be included in the illustrative purposes.^[154] For example, the ACCC submitted that more detailed illustrative purposes should be developed that

are able to reflect the value of ensuring the efficient operation of markets for copyright material and which encourage a careful consideration of relevant factors to ensure that copyright rights are not extended in a manner which creates monopoly characteristics in ancillary markets.^[155]

5.120 There were many suggestions for additional illustrative purposes:

• professional advice^[156]—specified as ‘the preparation of legal advice’,^[157] ‘the giving of professional advice’,^[158] and ‘providing or seeking professional advice’;^[159]

• legal proceedings;^[160]

• amateur photographers and audiovisual makers’ use of digital images where used in the context of a photographic competition or display, including where held within a club and open to public viewing;^[161]

• transformative uses;^[162]

• ‘system-level caching’;^[163]

• specification of ‘digital remedial processes’ such as ‘conversion or reformatting of records and data’;^[164]

• use for studying and testing the operation of computer software,^[165] that is, ‘for public interest reasons such as making a back up copy, security testing, reverse engineering for making interoperable products and error correction’;^[166]

• software preservation and archiving;^[167]

• uses for cultural heritage, cultural enrichment or similar purposes;^[168]

• the sharing of public collections, to allow galleries, libraries and museums to share works in their collection online;^[169]

• ‘using unpublished works deposited in cultural institutions for over 50 years to enable digital preservation and public access online’;^[170]

• ‘education, science and research’;^[171]

• teaching, or research or study (including multiple copies for classroom use);^[172]

• public administration, including ‘public use of copyright works held by the government’;^[173]

• ‘other non-commercial uses, such as in the government or non-profit sectors’;^[174]

• uses for ‘disadvantaged groups, such as elderly and/or those with a disability’;^[175]

• ‘third-party uses on behalf of an end-user where the third-party use is facilitating an otherwise fair use by the end-user’;^[176]

• ‘lack of supply’;^[177] and

• uses for the purpose of advertising the sale of an artwork.^[178]

Professional advice exceptions

5.121 A number of stakeholders called for an illustrative purpose referring to the giving of professional advice, expressed in differing ways.^[179]

5.122 The current provisions relating to the use of works and subject matter other than works in the context of professional advice, were described as ‘a mess’.^[180] In 1998, the CLRC identified these inconsistencies between subject matter and modes of advice, for which it could see no basis, and recommended that the distinctions be removed.^[181] Similarly, in this Inquiry, the Law Council submitted that it is ‘not aware of any particular reason why subject matter should be treated more favourably than original works’.^[182]

5.123 Some stakeholders considered that listing professional advice—however described—as an illustrative purpose would ensure that the new fair use exception works as intended, in clarifying that a fair use for the purpose of professional advice does not infringe copyright.^[183] Telstra submitted that it ‘seems inconsistent’ not to include this as an illustrative purpose, given that the ALRC proposed a fair dealing exception for this purpose.^[184]

5.124 The ALRC recommends that ‘professional advice’ be specified as an illustrative purpose in a fair use exception or new fair dealing exception. The term ‘professional advice’ should be adopted, rather than other expressions which may confine the purpose to advice given by a legal practitioner, registered patent attorney or registered trade marks attorney. Further, the ALRC does not consider that the Copyright Act needs to specify whether the exception be for seeking, giving or providing of advice. This is for three reasons.

5.125 The use of the term ‘professional advice’ is broad in scope. This is appropriate, and broadly expressed. This addresses concerns that ‘there is no reason of principle why advice provided by other professional groups such as accountants and doctors should not be treated in a broadly similar way’, especially given that the user will, in any case, always have to demonstrate that the use was fair.^[185]

5.126 Stakeholders held a spectrum of views on this issue. Some stakeholders sought a specific exception with respect to ‘giving and seeking advice’ with inclusion as an illustrative purpose seen as a second best option.^[186] The Law Council considered that ‘fair use is the appropriate standard rather than a blanket defence’.^[187]

5.127 The ALRC’s recommended approach will result in some narrowing of the current exceptions applying to professional advice in s 104(b) and (c) of the Copyright Act (in that a fairness determination will be required), but there will also be some broadening of the fair dealing exceptions in s 43(2), because the exception will not be confined to the ‘giving’ of professional advice.

The eleven illustrative purposes

5.128 The ALRC recommends eleven illustrative purposes. The rationale for including these illustrative purposes in the fair use exception is explained in a number of other chapters in this Report.^[188]

5.129 For present purposes, it is sufficient to note that:

• some of the illustrative purposes that were proposed in the Discussion Paper have been recast: ‘incidental or technical use’ replaces ‘non-consumptive’ use and ‘non-commercial private use’ replaces ‘private and domestic’ use;

• the ALRC is not recommending the inclusion of an illustrative purpose for ‘public administration’, instead the ALRC recommends amendment, and enactment, of a number of specific exceptions; and

• three new illustrative purposes have been added since the Discussion Paper: ‘professional advice’, ‘library or archive use’ and ‘access for people with disability’.

5.130 With respect to arguments that there should be more detail in the description of each illustrative purpose, the ALRC notes that the existing purpose-based exceptions in the Copyright Act—the fair dealing exceptions—are cast at a similar level of generality. Relevant chapters in this Report contain further guidance in respect of particular illustrative purposes. The ALRC has responded to stakeholder input concerning previously proposed illustrative purposes, such as ‘non-consumptive’ use and ‘public administration’, which may not have been as easily understood as acceptable uses of copyright material.

5.131 The list includes some, but not all, of the purposes that may tend to favour a finding of fair use. It is important that the non-exhaustive nature of the list be well understood. In the ALRC’s view, the list of purposes is not so lengthy as to suggest that flexibility has been compromised.^[189]

5.132 Academics stated that the proposed list of illustrative purposes was ‘comprehensive and consistent with comparative law in other jurisdictions’^[190] and ‘very much in the tradition of s 107 of the US Copyright Act: it tries to map the contours of fair use, without attempting to set its future boundaries’.^[191] They approved broadly of the illustrative purposes not currently the subject of exceptions, submitting that these were ‘broad enough to meet temporary expectations of kinds of fair use’^[192] but do not foreclose further common law development.^[193]