5.6 The ALRC considers that the fair use exception should contain three elements:
an express statement that a fair use of another’s copyright material does not infringe copyright;
a non-exhaustive list of four fairness factors to be considered in determining whether use of that copyright material is fair; and
a non-exhaustive list of illustrative uses or purposes.
5.7 Many stakeholders supported the proposed structure of a fair use exception. For example, Communications Alliance submitted that the four fairness factors ‘represent a reasonable way in which to consider the circumstance of use of copyright material’, ensuring that consideration is given to why the material was copied.
5.8 Professor Kathy Bowrey considered that the fairness factors and illustrative purposes would be mutually supportive:
The former primarily serve to better elucidate motivational factors related to the creation of the defendant’s work and allow for critical reflection on the significance of that evidence, in view of current cultural and economic practices. The non-exhaustive list of illustrative purposes document established cultural practices that might generally be indicative of fair use, where the fairness factors are also met.
5.9 In her view, the advantage of this approach is that, by separating out the fairness factors from the illustrative purposes, it is ‘easier for the public to identify the normative factors they need to consider to determine the legitimacy of their use, regardless of any idiosyncrasies associated with their individual practice’.
5.10 The fairness factors and illustrative purposes provide adequate guidance for users of copyright material and the courts. This model of fair use was considered to meet the challenge of moving from the existing law to a principles or standards-based approach, by ‘building on the existing understanding of key concepts rather than starting from scratch’, providing stability and certainty for industry participants, as well as guidance to the courts.
Recommendation 5–1 The fair use exception should contain:
(a) an express statement that a fair use of copyright material does not infringe copyright;
(b) a non-exhaustive list of the factors to be considered in determining whether the use is a fair use (‘the fairness factors’); and
(c) a non-exhaustive list of illustrative uses or purposes that may qualify as fair use (‘the illustrative purposes’).
For example, Intellectual Property Committee, Law Council of Australia, Submission 765; eBay, Submission 751; Choice, Submission 745; Optus, Submission 725; Australian War Memorial, Submission 720; CAMD, Submission 719; EFA, Submission 714; Copyright Advisory Group—Schools, Submission 707; National Library of Australia, Submission 704; IP Australia, Submission 681; Communications Alliance, Submission 653 National Archives of Australia, Submission 595; K Bowrey, Submission 554.
Communications Alliance, Submission 653.
K Bowrey, Submission 554.
For example, Universities Australia, Submission 754; eBay, Submission 751; ACCC, Submission 658; Telstra Corporation Limited, Submission 602.
eBay, Submission 751.
ACCC, Submission 658.