6.1 This chapter considers an alternative to an open-ended fair use exception, namely, a ‘new fair dealing exception’ that consolidates the existing fair dealing exceptions in the Copyright Act and introduces new purposes. The ALRC recommends that this fair dealing exception be introduced, if fair use is not enacted.

6.2 This exception is similar to fair use, but it is confined to certain prescribed purposes. The purposes listed in the fair use exception are illustrative—examples of types of use that may be fair. The purposes listed in the new fair dealing exception, on the other hand, confine the exception. This exception will only apply when a given use is made for one of the prescribed purposes.

6.3 Like fair use, a confined fair dealing exception is more flexible and adaptive than detailed, prescribed exceptions. It requires certain factors to be considered in an assessment of fairness. This flexibility is necessary to allow for innovative and productive uses of copyright material in a digital age.

6.4 Fair dealing also asks the right questions of a given use of copyright material. It promotes socially beneficial and transformative uses, and disfavours uses that unfairly harm the markets of creators and other rights holders. In this way, fair dealing encourages and rewards the creation of new copyright material.

6.5 Fair dealing shares many of the benefits of fair use. The benefits of the specific fairness factors are discussed in Chapter 4. The merits of the specific prescribed purposes, such as educational use, are discussed in separate chapters concerning those types of use.