17.1 Owners and users of copyright may agree that some or all of the statutory exceptions to copyright are not to apply—so that, for example, the user will remunerate the copyright owner for uses that would otherwise be covered by a free-use exception. This is referred to as ‘contracting out’ and raises fundamental questions about the objectives of copyright law, the nature of copyright owners’ exclusive rights and exceptions, and the respective roles of the Copyright Act 1968 (Cth), contract, and competition and consumer law and policy.

17.2 This chapter considers whether the Copyright Act should limit the extent to which parties may effectively contract out of the operation of existing, and proposed new, exceptions to copyright.

17.3 The ALRC proposes that the Copyright Act should be amended to provide that contractual terms excluding or limiting the operation of the libraries and archives exceptions and the proposed fair use exception—in relation to fair uses for purposes of research or study; criticism or review; parody or satire; reporting news; and quotation—are unenforceable.

17.4 The primary reason for this proposal is to ensure that the public interests protected by copyright exceptions, including the proposed fair use exception, are not prejudiced by private arrangements. However, any broader limitation on contracting out—for example, extending to all free-use exceptions, or to all fair uses—would not be practical or beneficial.