Fair use

11.27 In Chapter 4, the ALRC proposes that a fair use exception be introduced into the Copyright Act. Consequently, and for a number of reasons, the ALRC also proposes that s 200AB be repealed.

11.28 First, the ALRC considers it telling that the sectors s 200AB was intended to benefit are calling for its repeal. There was little support from stakeholders for amending s 200AB.[39] It is clear that the provision is not working as intended, and that the lack of uptake can be attributed to a number of factors, including: the uncertainty of the language; lack of case law and practice; lack of legal resources to interpret the provision and the risk averse nature of cultural institutions.

11.29 Secondly, the ALRC considers that cultural institutions may feel more comfortable applying a fair use test than s 200AB. Fair use requires consideration of the ‘fairness factors’, which provides a framework for balancing competing factors. Requiring cultural institutions to apply a ‘fairness’ test—for which they have some familiarity with the underlying concepts—should result in greater uptake and application and contribute to wider dissemination and access to materials in the public interest. The ALRC stresses that fair use does not mean free use. The fairness factors require consideration of the effect of the use upon the potential market for, or the value of, the copyright material.

11.30 Further, if it is accepted that the starting point for fair use is not as uncertain as s 200AB, the ALRC sees greater potential for guidelines, around the concept of fairness, to be effective.[40]

11.31 Thirdly, fair use could be much more flexible in its operation than s 200AB. Fair use is not limited to any class of user or type of use. As cultural institutions’ practices change over time, the fair use framework can be applied to determine whether such practices constitute infringement.

11.32 In sum, a fair use approach should provide cultural institutions with the ability to better analyse when communication or digitisation of copyright material would be fair, taking into account the interests of rights holders.

11.33 In the event that a general fair use exception is not enacted, the ALRC proposes that the Copyright Act be amended to provide ‘fair dealing for libraries and archives’. In considering whether uses by libraries or archives constitute fair dealing, regard should be given to the fairness factors. This would ensure that the concept of fairness is the standard with which to consider whether uses of copyright material constitute infringement.

11.34 The ALRC considers that the fair use exception may allow cultural institutions to engage in a number of activities that they suggested were currently being impeded by the Copyright Act. Some of these are discussed below.

Unpublished works

11.35 A number of stakeholders called for a reduction in the term of copyright to allow the digitisation and communication of unpublished material.[41] Under the Copyright Act, copyright subsists in a literary, dramatic, musical or artistic work until 70 years after the end of the calendar year in which the author died.[42] If a literary, dramatic or musical work was not published before the author died, the copyright term of 70 years does not start to run until one calendar year after it is first published.[43] In effect, if a work is never published copyright in the work remains in perpetuity.

11.36 Under the fair use exception proposed, the fact that a work is unpublished does not rule out the case for fair use. The fair use provision in the US specifically recognises that ‘the fact that a work is unpublished shall not of itself bar a finding of fair use if such a finding is made upon consideration of all the above factors’.[44] Similarly, under the ALRC’s model, the fact that a work is unpublished is not determinative of the fair use question.[45] Whether a use is fair will be determined by the fairness factors, including the nature of the use; the amount that is copied; and the impact on any potential market for the material.[46]

Harvesting of Australian web content

11.37 The National Library of Australia (NLA) called for a specific exception that would allow it to harvest and preserve Australian internet content. It advised that, despite not relying on any exception to do so, it has conducted annual harvests of Australian web material since 2005, gathering 5 billion files and 200 terabytes of data. In harvesting, the library ‘posts information for website owners on the Pandora website and places a link to this notice in the web harvest robot’s request to the targeted servers’. That is, the library does not contact the owners before harvesting the material, rather notification of the harvesting is done at the time the website is harvested.[47]

11.38 The NLA noted that responses from website owners have been minimal.[48] Despite this, the NLA argued that because it has effectively copied the content without the copyright owner’s permission, it has not permitted public access to the data. However, it has responded to individual research requests to analyse the data.

11.39 To the extent that the NLA has not received many takedown requests, this might suggest that copyright holders consider such harvesting to be fair use. Use of technology to copy publicly available websites and index it for search purposes, might be considered to be a non-consumptive use as defined in Chapter 8. Whether the communication of harvested material constitutes infringement will need to be considered against the fairness factors outlined in Chapter 4. The fairness factors are more likely to support communication of publicly available material for public interest purposes such as research and study. However, communication of content on websites that are behind a ‘paywall’ or for which access would otherwise require payment of a licence, would be less likely to be fair use.

Internal administration and archival purposes

11.40 The Australian Broadcasting Corporation (ABC) argued for an exception that would allow it to make copies and communicate ‘low resolution viewing copies’ of digitised works that are used by program makers searching for relevant audio or video segments. It suggested that its staff should be able to browse these archived copies on their local computers:

Such a system would not infringe the rights of non­­-ABC rights holders in its archived content, as none of the audio and video material it contains could be used for program-making without directly addressing those rights.[49]

11.41 The National Archives of Australia called for an exception to allow archives to communicate non-Crown copyright material once it is available under the relevant archival legislation, meaning that

Copyright third party material provided to government for administrative purposes could continue to be used for purposes of public administration, including public research in government archives, without copyright infringing or requiring payment of compensation.[50]

11.42 Similarly, the Council of Australasian Archives and Records Authority argued that the Act ‘does not readily facilitate/support online access to public sector information which incorporates material in which the Crown does not own copyright’.[51]

11.43 The ALRC considers that the above uses may fall under the illustrative purpose of ‘public administration’, outlined in Chapter 14. The ALRC considers that uses for public administration would include government uses required by statute, such as, making surveyors’ plans publicly available and releasing third party material as required by freedom of information laws. To the extent that archives or public broadcasters can be considered the Crown for the purposes of the Copyright Act, and where the use of third party material is required by statute, such uses are likely to fall under the rubric of ‘public administration’. However, the fact that a use falls under the illustrative purpose of ‘public administration’ alone is not determinative of the question of fair use. Regard must still be had to the fairness factors.

Proposal 11–1 If fair use is enacted, s 200AB of the Copyright Act should be repealed.

Proposal 11–2 The fair use exception should be applied when determining whether uses of copyright material not covered by specific libraries and archives exceptions infringe copyright.

Proposal 11–3 If fair use is not enacted, the Copyright Act should be amended to provide for a new fair dealing exception for libraries and archives. This should also require the fairness factors to be considered.

[39] Burrell and others considered broadening the exception to ‘all users’, but did not recommend this approach, given the problems with the current language of the provision: Ibid.

[40] See Ch 4.

[41] For example, the Australian War Memorial suggested that an ideal reform would be a ‘provision whereby an individual unpublished literary work moves into the public domain following 50 years of donation into a public institution’: Australian War Memorial, Submission 188. See also National Library of Australia, Submission 218; ADA and ALCC, Submission 213, National Archives of Australia, Submission 155; Art Gallery of New South Wales (AGNSW), Submission 111. See Copyright Act 1968 (Cth) s 29(1) which provides that literary, dramatic, musical or artistic works, cinematograph film or a sound recording shall be deemed to have been published, if and only if, reproductions/copies/records have been supplied to the public.

[42]Copyright Act 1968 (Cth) s 33(2).

[43] Ibid s 33(3). A work is considered published if it has been ‘supplied (whether for sale or otherwise) to the public’: s 29(1).

[44]Copyright Act 1976 (US) s 107.

[45] The list of illustrative uses or purposes can be found in Proposal 4­–4.

[46] See Ch 4.

[47] The National Library of Australia advised that ‘the only way to identify and alert website owners on the scale required is through automated harvesting process’: National Library of Australia, Submission 218.

[48] Only eleven responses were received after the first harvest and the number of responses has declined since then, Ibid.

[49] Australian Broadcasting Corporation, Submission 210.

[50] The National Archives of Australia pointed to ss 48, 49 of the Copyright, Designs and Patents Act 1988 (UK) as a model: National Archives of Australia, Submission 155.

[51] CAARA, Submission 271.