9.1 The Copyright Act does not provide a stand-alone exception for quotation, or the taking of some part of copyright material, usually for the purpose of supporting an intellectual commentary or artistic idea.
9.2 This chapter considers various uses of copyright material in quotation, and describes examples of quotation that may be covered by fair use but are, in at least some circumstances, not covered by existing fair dealing exceptions. It also explains how the concept of quotation can be expected to be interpreted under a fair use exception.
9.3 The ALRC recommends that a fair use exception should be applied when determining whether quotation infringes copyright and that ‘quotation’ should be an illustrative purpose in the fair use exception.
9.4 The arguments in favour of including quotation as an illustrative purpose parallel those for introducing a fair use exception more generally (see Chapter 4). These include that fair use provides a standard that is flexible and technology-neutral, promotes transformative uses, assists innovation and better aligns with reasonable consumer expectations.
9.5 While the extent to which a particular use constitutes quotation can be important in assessing fair use in relation to the other illustrative purposes, the ALRC considers that it is important to signal that quotation may be fair use, without the need to be for any defined purpose.
9.6 In addition, expressly providing more scope for quotation in Australian copyright law will also ensure that Australia meets obligations under art 10(1) of the Berne Convention, while continuing to comply with the three-step test under art 9(2).
9.7 The ALRC also recommends that, if fair use is not enacted, the Copyright Act should be amended to introduce a new fair dealing exception, including quotation as a prescribed purpose, which may be held to be fair dealing. The chapter discusses how such an exception should be framed.