Whose purpose?

5.36 Unlike fair use, many exceptions are confined to a particular purpose or set of circumstances. The framing of these exceptions often raises the question of whether the person who uses the material, rather than the end-user, must have the requisite purpose for the exception to apply.

5.37 For example, the time-shifting exception in s 111 of the Copyright Act only applies if the person who makes the copy is the same person for whom the copy is made (to watch at a more convenient time). Considering the Optus TV Now service, discussed above, the Full Federal Court held:

There is nothing in the language, or the provenance, of s 111 to suggest that it was intended to cover commercial copying on behalf of individuals. Moreover, the natural meaning of the section is that the person who makes the copy is the person whose purpose is to use it as prescribed by s 111(1). Optus may well be said to have copied programmes so that others can use the recorded programme for the purpose envisaged by s 111. Optus, though, makes no use itself of the copies as it frankly concedes. It merely stores them for 30 days. And its purpose in providing its service—and, hence in making copies of programmes for subscribers—is to derive such market advantage in the digital TV industry as its commercial exploitation can provide. Optus cannot invoke the s 111 exception.^[29]

5.38 The fair dealing exceptions are likewise confined to the prescribed purposes, such as the purpose of research or study. In De Garis, the Federal Court said the relevant purpose required by the fair dealing for the purpose of research or study exception in s 40 of the Copyright Act was that of the defendant, a news clipping service, not that of its customers.^[30] The news clipping service was not copying for the purpose of research or study, even if the copies were to be used by its customers for that purpose.

5.39 This distinction was criticised in some submissions to this Inquiry. Some Australian copyright academics submitted that it is

entirely artificial to privilege acts of reproduction or copying that can be done by a researcher themselves over acts that require the involvement of a third party, such as an intermediary to assist with the copying or a publisher to disseminate the research output.^[31]

5.40 A more flexible reading of a fair dealing provision was recently made by the Supreme Court of Canada. In 2012, the Court considered ‘whether photocopies made by teachers to distribute to students as part of class instruction can qualify as fair dealing’ under Canadian copyright legislation—and concluded that they could qualify.^[32] The Court stated that photocopies made by a teacher and given to students are ‘an essential element in the research and private study undertaken by those students’.^[33] The Court held that teachers

have no ulterior motive when providing copies to students. Nor can teachers be characterised as having the completely separate purpose of ‘instruction’; they are there to facilitate the students’ research and private study.^[34]

5.41 Sometimes a third party’s use may seem merely to amount to facilitating another person’s fair use; they will have no ulterior purpose themselves. But often there will be some other ulterior purpose.

5.42 Applying fair use, the question then might be, is a third party use of copyright material more likely to be fair than it otherwise would, if the use is simply for another person who would be entitled to make the same use? Is a third party use that facilitates a use covered by one of the illustrative purposes more likely to be fair than a third party use that facilitates a use not covered by one of the illustrative purposes? In the ALRC’s view, the answer is probably yes, it would be more likely to be fair—but only marginally, and this factor is not as important as the four factors set out in the fair use exception. Of course the finding of a commercial purpose in a particular use, though by no means determinative, will tend not to favour a finding of fair use.