Common benefits

6.14 Many of the benefits of fair use would also apply to a confined fair dealing exception. They are both flexible standards, rather than prescriptive rules. They both call for an assessment of the fairness of particular uses of copyright material. In assessing fairness, they both require the same fairness factors to be considered, and therefore they both ask the same important questions of any given unlicensed use, when deciding whether it infringes copyright.

6.15 Both exceptions encourage the use of copyright material for socially useful purposes, such as criticism and reporting the news; they both promote transformative or productive uses; and both exceptions discourage unlicensed uses that unfairly harm and usurp the markets of rights holders.

6.16 Fair use and fair dealing are also more flexible and adaptive to new technologies and services than detailed, prescriptive exceptions, such as the time shifting exception. An exception for fair dealing for non-commercial private use, for example, would not need to be amended to account for the fact that consumers now use tablets and store purchased copies of copyright material in personal digital lockers in the cloud.

6.17 Parliament does not need to predict or approve new technologies and services that use copyright material. Instead, the Australian Parliament can enact one exception based on principles that can be used to evaluate whether almost any unlicensed use infringes copyright.