Whose purpose?

7.30 Unlike fair use, many exceptions to copyright are confined to a particular purpose. For example, the time shifting exception in s 111 of the Copyright Act only applies if the person who makes the copy is the same person for whom the copy is made (to watch at a more convenient time). Considering the Optus TV Now service, the Full Federal Court stated:

There is nothing in the language, or the provenance, of s 111 to suggest that it was intended to cover commercial copying on behalf of individuals. Moreover, the natural meaning of the section is that the person who makes the copy is the person whose purpose is to use it as prescribed by s 111(1). Optus may well be said to have copied programmes so that others can use the recorded programme for the purpose envisaged by s 111. Optus, though, makes no use itself of the copies as it frankly concedes. It merely stores them for 30 days. And its purpose in providing its service—and, hence in making copies of programmes for subscribers—is to derive such market advantage in the digital TV industry as its commercial exploitation can provide. Optus cannot invoke the s 111 exception.[20]

7.31 The new fair dealing exception recommended in this Report is confined to a set of prescribed purposes. The current fair dealing exceptions are also confined to prescribed purposes, such as the purpose of research or study. Fair dealing exceptions do not prohibit third party uses. The difficulty for the third parties comes from having to establish that the purpose of their use is one of the purposes listed in the exception. In De Garis v Neville Jeffress Pidler, the Federal Court stated the relevant purpose required by the fair dealing for the purpose of research or study exception, in s 40 of the Copyright Act, was that of the defendant, a news clipping service, not that of its customers.[21] The news clipping service was not copying for the purpose of research or study, even if the copies were to be used by its customers for that purpose.[22]

7.32 This distinction was criticised in some submissions to this Inquiry. Professor Robert Burrell and others submitted that it is

entirely artificial to privilege acts of reproduction or copying that can be done by a researcher themselves over acts that require the involvement of a third party, such as an intermediary to assist with the copying or a publisher to disseminate the research output.[23]

7.33 Universities Australia submitted that it was ‘absurd’ that a university student can copy for his or her own research purposes, but that a university cannot copy the very same work on behalf of the student, even if this were fair use.[24]

7.34 Universities Australia said that introducing fair use—which is not confined to prescribed purposes—would remove ‘an artificial distinction between dealings by a person for their own research or study and dealings by a person undertaking the very same copying on their behalf’.[25] The University of Sydney submitted that it may like to rely on fair use to ‘solicit the services of a third party service provider (such as a cloud server or document digitisation service) to make or store copies in a format that is accessible across a range of technological platforms (tablets, intranet, other)’.[26]

7.35 Google submitted that often cloud service providers operate merely to ‘stand in the shoes’ of their consumers, for example, to ‘to back up content on a customer’s behalf, to store a document the consumer has created in a cloud drive so they can access it from multiple devices, or to provide cloud-based hosting of IT systems’:

In these circumstances, even where the provider may receive some commercial benefit from providing the storage, it is the user who is making the copy, and deciding what is copied. The purpose of making the copying should therefore be seen as identical to the customers’ purpose. If the purpose of the consumer in using copyright material is fair, so too should the purpose of the provider in facilitating that use.[27]

7.36 The NSW Government submitted that fair use promotes ‘more principled statutory interpretation, and more predictable law, by focusing attention on whether or not a use is “fair” rather than on whether it can be brought within one or other of a group of rigid, pre-ordained categories’.[28]

To see why this is an improvement, one need look no further than TCN Channel Nine v Network Ten (‘The Panel case’), in which the Federal Court, the Full Federal Court and the High Court all grappled with the question whether the use in a humorous and satirical TV program of a number of clips from a rival broadcaster’s programs was, in the case of each clip, a fair dealing for the purpose of reporting news or of criticism or review.[29]

7.37 In 2012, the Supreme Court of Canada considered ‘whether photocopies made by teachers to distribute to students as part of class instruction can qualify as fair dealing’ for research or private study under Canadian copyright legislation, and concluded that they could qualify.[30] The Court stated that photocopies made by a teacher and given to students are ‘an essential element in the research and private study undertaken by those students’.[31] The Court held that teachers

have no ulterior motive when providing copies to students. Nor can teachers be characterised as having the completely separate purpose of ‘instruction’; they are there to facilitate the students’ research and private study.[32]

7.38 Not all third parties share such a ‘symbiotic purpose’ with the persons for whom they may use copyright material.

7.39 Some stakeholders suggested that the Copyright Act should expressly provide that a third party use that merely facilitates another use that would either be fair use or would be permitted under another unremunerated exception either necessarily does not infringe copyright, or should be an illustrative purpose in a fair use exception.[33] It was also submitted that the Act be amended to make clear that there was ‘no per se restriction on a third party relying on fair dealing to undertake uses on behalf of persons who were themselves entitled to rely on the exception’.[34]

7.40 However, in the ALRC’s view, the fair use exception is sufficiently flexible to allow for third party uses to be considered fair in appropriate circumstances. But such uses do not seem to warrant particular emphasis by including them in the list of examples in the fair use provision. It is important that third parties are not precluded from relying on fair use or fair dealing. It is less clear that a third party use is a particularly noteworthy example of fair use.

7.41 The new fair dealing exception limits the types of third party uses that may be considered under a fairness exception. This is one reason why the ALRC favours fair use. It is preferable at least to consider whether any particular use is fair, rather than to automatically exclude uses not for prescribed purposes.

7.42 To say that these additional third party uses should at least be considered under the fair use exception is not to say the uses would be fair. But copyright law that is conducive to new and innovative services and technologies should at least allow for the question of fairness to be asked.