Contracting out

Consideration of limits on the extent to which parties may effectively contract out of existing, and recommended new, exceptions to copyright law raises fundamental questions about the objectives underlying copyright protection. At present, there are few express limitations on contracting out.

The ALRC recommends that the Copyright Act should be amended to provide that contractual terms restricting or preventing the doing of any act which would otherwise be permitted by the libraries and archives exceptions are unenforceable. Further, if the fair use exception is not enacted, limitations on contracting out should apply to the new fair dealing exception. However, broader limitations on contracting out—for example, extending to all exceptions, or to all fair uses—would not be practical or beneficial.