Repeal of existing exceptions

13.68 If either fair use or a fair dealing for education exception is enacted, then the existing specific exceptions in the Copyright Act for educational institutions should be repealed— ss 28, 44, 200, 200AAA and 200AB.[62]

13.69 The ALRC would expect that many uses within the scope of these exceptions are likely to be fair under the fair use exception—although this would depend on the application of the fairness factors in the particular circumstances. Some may not be fair, perhaps where rights holders can now offer licences they were once thought unlikely to be able to offer.

13.70 In any event, the ALRC considers that to increase innovation and efficiency in a digital age, copyright exceptions should be flexible and refer to principles. Confined and specific exceptions should therefore only be necessary to remove any doubt with respect to uses which have a particularly important public interest.

Proposal 13–1 The fair use exception should be applied when determining whether an educational use infringes copyright. ‘Education’ should be an illustrative purpose in the fair use exception.

Proposal 13–2 If fair use is not enacted, the Copyright Act should provide for a new exception for fair dealing for education. This would also require the fairness factors to be considered.

Proposal 13–3 The exceptions for education in ss 28, 44, 200, 200AAA and 200AB of the Copyright Act should be repealed.

[62] The repeal of s 200AB is also proposed in Ch 11, ‘Libraries, Archives and Digitisation’. Section 200AB also covers certain uses by or for persons with disability.