9.53 The ALRC recommends that, if fair use is not enacted, the Copyright Act should be amended to introduce a new fair dealing exception. This would combine existing fair dealing exceptions and introduce new prescribed purposes, including ‘quotation’, which may be held to be fair dealing.
9.54 The following section discusses whether, in view of the Berne Convention and in the light of proposed Australian and UK formulations of a quotation exception, any additional matters should be included in a fair dealing for quotation provision.
The Berne Convention and quotation
9.55 Article 10(1) of the Berne Convention provides:
It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.
9.56 Commentators have suggested previously that art 10(1) of the Berne Convention could be considered as the basis for new exceptions permitting quotation in commercial works; or fair dealing for the purpose of quotation.
9.57 Article 10(1) is generally considered to impose an obligation to provide an exception for fair quotation. That is, unlike the other exceptions provided for under the Berne Convention, fair quotation is framed as a mandatory provision, as ‘something that must be provided for under national laws, rather than as something that may be done at the discretion of national legislators’.
9.58 The Berne Convention does not place any limitation on the amount that may be quoted under art 10(1), provided it does not exceed that justified by the purpose. Ricketson and Ginsburg state that, in some circumstances, quotation of a whole work may be justified.
9.59 The ‘quotation right’ provided for by the Berne Convention is not limited to text-based copyright material. The word ‘works’ is used to encompass all the types of works that are listed in art 2. That is, literary and artistic works (including, for example, dramatic works, choreographic works, cinematographic works and photographic works), derivative works (including translations, adaptations and arrangements of music) and collections of works such as anthologies and encyclopaedias.
9.60 In contrast, COMPPS and the AFL considered that a fair dealing exception for quotation should not apply to all copyright material. COMPPS stated, for example, that there is ‘no legitimate reason for unlicensed third parties to be able to use audio, audio visual or photographic content for quotation purposes’.
9.61 The text of art 10(1) makes it clear that a quotation must meet three requirements to be permitted under the provision. These are, first, that the work in question must have been ‘lawfully made available to the public’; secondly, that the making of the quotation must be ‘compatible with fair practice’; and, thirdly, that the extent of the quotation must ‘not exceed that justified by the purpose’. Questions may be raised about whether these criteria should be incorporated in any new exception covering quotation.
9.62 The first requirement, that the work be ‘lawfully available to the public’, is not a requirement of existing fair dealing exceptions under the Copyright Act. The art 10(1) requirement includes the making available of works by any means, not simply through publication.
9.63 Ricketson and Creswell observe that, while the fair dealing for criticism or review exception in s 41, for example, does not distinguish between published and unpublished works as ‘it seems clear from the cases that an unauthorised dealing with an unpublished work will not often be regarded as “fair”, particularly if the greater part or the whole of the work is reproduced’.
9.64 In any case, there seems to be no need to limit a fair dealing for quotation exception to material lawfully available to the public, as the requirement under the Berne Convention should be seen as providing the minimum scope of a quotation exception. There is nothing to prevent a broader exception, within the confines of the three-step test.
9.65 The second and third requirements are, in the ALRC’s view, satisfied by the recommended fairness factors, whether these are incorporated in fair use or new fair dealing exceptions. As discussed in Chapter 4, the ALRC considers that its recommended fair use exception (and fairness factors) are consistent with the three-step test.
9.66 The concept of ‘fair practice’ can be seen as essentially applying the three-step test. Ricketson observes that these criteria, in art 9(2), appear to be equally applicable in determining whether a particular quotation is ‘fair’. The requirement that the extent of the quotation must ‘not exceed that justified by the purpose’ is implicit in the fairness factors. In this regard, Ricketson observes that art 10(1) could cover ‘much of the ground’ that is covered by fair use in the US.
Framing a quotation exception
9.67 A number of models for framing an Australian quotation exception have been suggested. For example, in 2011, the Copyright Council Expert Group discussed an exception permitting the quotation of copyright material in commercial works, before recommending the development of a non-commercial transformative use exception.
9.68 Associate Professor Elizabeth Adeney has proposed draft clauses providing fair dealing exceptions for quotation. The exceptions would provide that a use would not constitute copyright infringement if:
it is for the purpose of quotation;
the quotation constitutes a fair dealing with the quoted material; and
sufficient acknowledgement of the quoted material is made.
9.69 Both provisions would also provide a list of discretionary matters to consider in determining whether the use of a ‘quotation’ satisfies ‘fair dealing’. These include:
whether the quotation has been used in good faith;
the extent of the quotation and whether or not this exceeds the purpose for which the quotation is used;
the degree to which the quotation interferes with the commercial interests of the copyright owner of the quoted work; and
whether the use of the quotation furthers the community interest in free speech and the freedom of artistic expression.
9.70 Adeney considers that any exception for quotation would have to address a number of complexities, including whether the provisions should apply only to published works; how ‘quotation’ is to be defined; and how an exception for quotation would interact with other fair dealing exceptions. She states that specific exceptions for quotation
would support or extend other fair dealing arguments in the areas of scholarship and debate and, like the recently implemented exception for parody and satire, it would have the capacity to soften the impact of copyright in the arts sphere. This capacity would be strengthened if a consideration of the freedom of art were to be mandated, going to the question of fair dealing in the quotation context. The defence would also bring Australian copyright law into closer alignment with both the European jurisdictions and the Berne Convention/TRIPS requirements.
9.71 A simpler model is provided by a proposal in the UK, released in the form of draft legislation by the Intellectual Property Office in 2013. The UK Government intends to amend its fair dealing exception for criticism and review, reframing it as a quotation exception for purposes such as, but not limited to, criticism and review.
9.72 The stated aim is to ensure that copyright ‘does not unduly restrict the use of quotations for reasonable purposes that cause minimal harm to copyright owners, such as academic citation or hyperlinking, without undermining the general protection provided for copyright works’.
The exception permits the use of a quotation from a work for purposes such as criticism and review. In one dimension this slightly narrows the current criticism and review exception by permitting use only for the purpose of quotation. In another it slightly widens it by allowing such quotations to be used for purposes other than, but similar to, criticism and review.
9.73 The proposed UK model would be narrower in some respects than the Australian fair dealing for criticism or review exception—in requiring that the copyright material has already been ‘lawfully made available to the public’; and excluding uses not ‘in accordance with fair practice’ or beyond the extent required by the specific purpose. As discussed above, these requirements are set out in art 10(1) of the Berne Convention.
9.74 Australian Film/TV Bodies considered the UK proposal to be ‘unsatisfactory’, and stated that without limits on the purposes for, and extent to which, quotations may be used, the model ‘runs the risk of exempting, on [a] discretionary fairness basis, any act of using part, rather than the whole, of a work’.
9.75 Other stakeholders also expressed concern about the scope of a quotation. The National Association for the Visual Arts stated that a quote should be defined to relate to a part, and not the whole of a work. In contrast, Adeney states that her exceptions would allow the taking of the whole material under certain circumstances because ‘where the source material is short, or where what is quoted is a picture or photograph, quotation of only part of the material is unlikely to fulfil the purpose that the quoting party wishes to achieve’.
9.76 The Queensland Law Society noted that the ordinary meaning of quotation involves ‘no purposive, qualitative or quantitative limitation’. The Society submitted that without some context, an exception based on quotation ‘might evolve to be broader than may be intended’ and that any defence should be ‘framed by reference to a quantitatively and qualitatively reasonable act which is for the purpose of acknowledging the original or some circumstance or person connected with the original’.
9.77 In contrast, Associate Professor Mathew Rimmer has written that the term ‘quotation’ alone may be too restrictive. He stated that the term is ‘somewhat anachronistic, and does not necessarily capture a full range of transformative uses—such as forms of digital sampling, remixes, and mash-ups’.
9.78 Some formulations of the concept of a quotation attempt to provide more clarity. Adeney defines ‘quotation’ for the purposes of her proposed quotation exception as being ‘for the purpose of supporting an intellectual commentary or artistic idea contained in the quoting work or other subject matter’. She explains that the idea of the quotation ‘supporting an intellectual commentary’ covers the use of quotations in most contexts and states that the ‘notion of supporting an artistic idea expresses the need for the quoting work to have its own artistic logic and intellectual structure into which the quotation is interpolated in a supportive role’.
9.79 A final issue in framing a fair dealing for quotation exception concerns the role of acknowledgement. The existing fair dealing exceptions in ss 41, 42, 44, 45, 103A and 103B of the Copyright Act require ‘sufficient acknowledgement’ to be made of the copyright material used. The models for a quotation exception discussed above include such a requirement.
9.80 Some stakeholders submitted that any new fair dealing for quotation exception should also require sufficient acknowledgement. In contrast, Robert Xavier suggested that there should not be any ‘express requirement for attribution as a threshold test’ in a quotation exception, because
Attribution will be required by the moral rights provisions and it is appropriate that the attribution requirement be subject to the reasonableness defence, as it is not always necessary to provide express attribution (for example, where the identity of the original author will be obvious to the audience of the work in which the quote is used).
Fair dealing and quotation
9.81 Quotation should be considered under the recommended fair use exception where a range of factors can be balanced in determining whether a particular use is permitted.
9.82 The ALRC also recommends that, if fair use is not enacted, the Copyright Act 1968 (Cth) should be amended to introduce a new fair dealing exception that would combine existing fair dealing exceptions with new fair dealing provisions. This new fair dealing exception should include quotation as a prescribed purpose, which may be held to be fair dealing. This quotation exception should supplement, and not replace, any of the existing fair dealing purposes, such as criticism or review.
9.83 The exception would require consideration of whether the use is fair, having regard to the same fairness factors that would be considered under the fair use exception. Applying the two exceptions to instances of quotation should, therefore, produce the same result. However, there will be some transformative uses of copyright materials that are not quotation, in that there is no attempt to reference the original work. These may be protected by the fair use exception, but not by a fair dealing quotation exception.
9.84 The ALRC does not consider that it is necessary or desirable to further define the term ‘quotation’. The term alone is adequately understood and any attempt to define it would run the risk of introducing new complexity without any additional benefit. Neither the UK proposal nor the Israeli fair use provision provide any further definition of the term.
9.85 The ALRC considers that a new fair dealing for quotation exception does not need to expressly include a requirement of sufficient acknowledgement. Acknowledgement is a matter that can be taken into account under the fairness factors.
9.86 As discussed in Chapter 5, whether or not the source of the copyright material used is acknowledged, and the extent of the acknowledgement, may be a factor in a fair use determination—for example, in considering the ‘purpose and character of the use’ under the first fairness factor. The moral rights provisions also require attribution of authorship and performership in many circumstances.
Recommendation 9–1 The fair use or new fair dealing exception should be applied when determining whether a quotation infringes copyright.