6.18 This Report recommends the introduction of a fair use exception, which has a number of advantages over a confined fair dealing exception.
6.19 Despite the many benefits common to both fair use and fair dealing, a confined fair dealing exception will be less flexible and less suited to the digital age than an open-ended fair use exception. Importantly, with a confined fair dealing exception, many uses that may well be fair will continue to infringe copyright, because the use does not fall into one of the listed categories of use. For such uses, the question of fairness is never asked.
6.20 Some submissions stressed that, while an improvement on the current law, the alternative fair dealing exceptions are very much a second-best option and that fair use was preferred. Universities Australia submitted that fair use properly focuses on whether or not a given use is fair and would ‘greatly reduce the uncertainty that has resulted from having to pigeonhole a particular use into one of the purposes’ in the existing fair dealing exceptions.
6.21 The Law Council of Australia broadly supported some alternative fair dealing exceptions, if fair use were not enacted, but it warned that:
this piecemeal approach is a very poor alternative which is likely to lead to much greater uncertainty and expense from the need to identify a particular category or pigeon hole in which to fit a contested use and argument over whether the use meets the criteria for that category.
6.22 It can also be argued that the new fair dealing exception is more certain than fair use, because it is clear that any use not for one of the listed purposes, cannot be found to be fair. However, those who prefer an adaptive, flexible approach to copyright exceptions will agree with the copyright academics who submitted that:
Australia’s current system of exceptions only provides ‘certainty’ in the sense that we can be confident that a whole raft of socially desirable re-uses of copyright material are prohibited.
6.23 The ALRC agrees with some of these criticisms of confined exceptions, and prefers the open-ended fair use exception. However, in response to stakeholder feedback the ALRC is recommending an alternative in the event that fair use is not enacted. This alternative builds upon the existing fair dealing regime and may even prepare the way for fair use at a later time.
6.24 Although fair dealing is necessarily narrower than fair use, the scope of the purposes in the new fair dealing exception need not be given a narrow construction. Rather, they should be given a wide construction. In considering the UK’s fair dealing exception for criticism or review, Lord Justice Walker stated:
‘Criticism or review’ and ‘reporting current events’ are expressions of wide and indefinite scope. Any attempt to plot their precise boundaries is doomed to failure. They are expressions which should be interpreted liberally … However it can be said that the nearer that any particular derivative use of copyright material comes to the boundaries, unplotted though they are, the less likely it is to make good the fair dealing defence.
6.25 Many of the other purposes listed in the new fair dealing exception recommended in this Report also have a wide and indefinite scope. The ALRC considers they should also be interpreted liberally, so that the focus can be on whether a given use is fair, rather than on whether a given use falls into one of the prescribed categories of purpose.
6.26 If a particular use is only on the margins of one of the purposes, then it may be less likely to be fair. This would seem to be true when applying both fair use and fair dealing, though the question will be more important when applying fair dealing.
6.27 Fair dealing could be made more like fair use by adding additional uses to the list of purposes in the new fair dealing exception, and by drafting the purposes more broadly. A confined fair dealing exception with many broad categories of permitted purpose would be more like fair use than the same exception with only a few narrow categories of permitted use. The more purposes that are listed in a fair dealing exception, the more similar it will be to fair use.
6.28 However, the new fair dealing exception is recommended in this Report as an alternative to fair use—the two exceptions cannot be the same. The ALRC does not list in the new fair dealing provision every type of use that it believes should be considered under a fairness exception. However, if fair dealing is enacted instead of fair use, then consideration might be given to including ‘back-up and data recovery’ and ‘interoperability, error correction and security testing’ in the fair dealing exception.
Universities Australia, Submission 754.
Intellectual Property Committee, Law Council of Australia, Submission 765. See also
R Burrell, M Handler, E Hudson, and K Weatherall, Submission 716.
Pro Sieben Media AG v Carlton UK Television Ltd  1 WLR 605.
This was recommended by R Xavier, Submission 531. See Ch 17.