6.37 Despite the many advantages of fair use over a confined fair dealing exception, the Australian Government may prefer to enact the new fair dealing exception. Arguments could include that fair dealing may appear to be more consistent with the three-step test. Another relevant consideration may be the unpopularity of fair use among many rights holders.
6.38 Some stakeholders have argued that fair use is not consistent with international law, in particular the three-step test in the Berne Convention. In the ALRC’s view, fair use is consistent with the three-step test. The ALRC’s view is shared by a group of 50 academics—including many leading international and Australian intellectual property lawyers and academics. This is evidently also the view of Israel, the Republic of Korea, the Philippines, and the United States. However, the argument that the new fair dealing exception is consistent with the three-step test may be even stronger, because it is explicitly confined to certain ‘special cases’—the listed purposes.
6.39 Another reason the Australian Government may prefer to enact a confined fair dealing exception is the widespread, and often strong, objections among rights holders to introducing fair use in Australia. On the whole, the ALRC has not found these arguments convincing, but the fact that there is such widespread objection may suggest to some that fair use should not be introduced at this stage. Professor Hargreaves found it ‘politically impossible’ to recommend fair use for the UK.
6.40 The ALRC notes that many of those who opposed fair use will also oppose the new fair dealing exception. Some rights holders told the ALRC that copyright exceptions did not need to be reviewed, and that the existing law just needs to be more strongly enforced. However, the ALRC considers that the new fair dealing exception is a pragmatic second-best option. It has many of the same benefits of fair use, but it is considerably confined by its prescribed purposes.
6.41 A new fair dealing exception could be a step towards fair use. The Australian Government could introduce the exception recommended in this chapter, and then later consider whether to remove the limitation to the listed purposes, so that the exception became an open-ended fair use exception.
6.42 However, in the ALRC’s view, Australia is ready for, and needs, a fair use exception now. It might profitably have been enacted some time ago, perhaps when the CLRC recommended it in 1998. A new fair dealing exception does not need to be introduced as a preliminary stage to enacting fair use. However, if fair use is not enacted, then the new fair dealing exception recommended below will be a considerable improvement on the current set of exceptions in the Copyright Act.
Recommendation 6–1 If fair use is not enacted, the Copyright Act should be amended to provide that a fair dealing with copyright material for one of the following purposes does not infringe copyright:
(a) research or study;
(b) criticism or review;
(c) parody or satire;
(d) reporting news;
(e) professional advice;
(g) non-commercial private use;
(h) incidental or technical use;
(i) library or archive use;
(j) education; and
(k) access for people with disability.
This provision should also provide that the fairness factors should be considered when determining whether the dealing is fair, along with any other relevant matter.
Note: This consolidates the existing fair dealing exceptions and provides that fair dealings for certain new purposes ((f)-(k)) also do not infringe copyright. Importantly, unlike fair use, this exception can only apply to a use of copyright material for one of the prescribed purposes. The purposes are not illustrative.
Berne Convention for the Protection of Literary and Artistic Works (Paris Act), opened for signature 24 July 1971,  ATS 5 (entered into force on 15 December 1972), art 9(2).
International IP Researchers, Submission 713.
See Ch 4.
However, an intermediate stage might bring additional costs and uncertainty. There would be two changes in the law, rather than one. Further, some of the work done on settling the scope of the purposes for the fair dealing exception—in agreements, protocols and possibly litigation—would be less important if fair use were enacted later. Strictly demarcating the boundaries of the purposes is not necessary with fair use as the purposes are merely illustrative.
See Ch 4.