Reform of fair dealing exceptions

7.77 Some stakeholders called for new specific fair dealing exceptions. Many submissions called for a specific exception for quotation,^[164] which is discussed in Chapter 10. However, stakeholders also suggested other possible fair dealing exceptions, including:

• fair dealing for the purpose of governmental and political discussion (with express reference to the implied constitutional right);^[165]

• fair dealing for ‘the purpose of discussing matters of public interest’ (possibly an extension of the existing fair dealing exception for reporting news or of any new fair dealing for the purpose of governmental and political discussion);^[166]

• fair dealing for the purpose of ‘the Crown to publish and disseminate research findings that arise from publicly funded research’;^[167] and

• fair dealing for the purpose of independent researchers being able to access, read and make one copy of content (seen as the ‘equivalent to access to hard copies in a public library’).^[168]

7.78 The ALRC has considered the various arguments and detailed discussion in submissions about the operation of the fair dealing exceptions in the digital environment and whether these provisions could be usefully simplified or made more coherent. While some submissions were of the view that no or minimal reform is warranted, a number of other submissions identified gaps in coverage and provided information about inconsistencies and drafting errors. The ALRC considers that such issues merit attention.

7.79 The ALRC proposes that:

• the new fair use exception should be applied when determining whether a use for one of the existing fair dealing purposes—or another unspecified purpose—infringes copyright;

• the existing fair dealing exceptions, as well as broader exceptions for professional advice, be repealed;

• if fair use is not enacted, that the existing professional legal advice exceptions be repealed and that new fair dealing exceptions for the purpose of professional advice be enacted; and

• if fair use is not enacted, that the existing fair dealing exceptions proposed in this Discussion Paper—including the new professional advice exceptions proposed above—should provide that the fairness factors in Proposal 4–3 must be considered in determining whether copyright is infringed.

7.80 Some of those who called for reform of the existing fair dealing exceptions advocated for, or were sympathetic to, the introduction of a flexible exception such as fair use,^[169] while others were opposed to this.^[170] The ALRC considers that the close-ended nature of the fair dealing exceptions is problematic in the digital environment as it is not sufficiently adapted, or flexible to respond, to changing circumstances. For example, the CSIRO submitted:

It is not always clear whether activity falls within the concept of ‘research or study’ and reticence to misuse another’s IP may mean that uses that facilitate dissemination and communication of scientific and technical information may be avoided despite there being no or marginal impact on the legitimate interests of a copyright owner. If a more general purpose exception applied this concern may be alleviated, the focus then being on the key issue of the impact of the use on the legitimate interests of the copyright owner.^[171]

7.81 Further, the degree of detail with which some of the fair dealing exceptions have been drafted has caused some complexity: gaps, different treatment and uncertainty. A new fair use exception, rather than new additional specific fair dealing exceptions, would provide an effective basis for responding to changed and changing circumstances caused by new technologies and uses, without unnecessarily complicating the Copyright Act. In light of this view, the ALRC proposes the repeal of the existing fair dealing provisions and application of the new fair use exception discussed in Chapter 4 when determining whether such uses infringe copyright.

7.82 The ALRC also proposes that the professional advice exceptions in ss 104(b) and (c)—which are not fair dealing exceptions—be repealed and replaced with the new fair use exception.

7.83 The ALRC proposes that all of the existing fair dealing purposes—apart from professional advice—be included specifically as illustrative purposes in the new fair use exception. Some submissions advocated a similar approach.^[172] For example, the Law Institute of Victoria submitted:

Whilst the exception should be open-ended, the Australian Act should set out a non-exhaustive list of examples that would constitute ‘fair use’. The sorts of examples that might be listed could include current fair dealing exceptions.^[173]

7.84 While the professional advice provisions serve an important public interest—in the CLRC’s view they serve ‘to facilitate access to the legal system and, indirectly, to lower legal costs^[174]—the ALRC does not consider that all the current fair dealing exceptions need be expressly listed as illustrative purposes in the new fair use exception. As was explained in Chapter 4, the illustrative purposes are not exhaustive.

7.85 With respect to assessing fairness, the ALRC notes that a divergent group of submissions called for the Copyright Act to outline factors to be considered in determining the fairness of the dealing or use of copyright material beyond the existing exceptions for research or study.^[175] The current approach where fairness factors are expressly stated in the fair dealing exceptions for research or study only was seen to make ‘little sense’, particularly where the Australian case law ‘provides remarkably little useful guidance as to how the “fairness” of a dealing for the purposes of criticism, review, news reporting, etc is to be determined’.^[176] The Australian Copyright Council acknowledged that ‘people sometimes find the case-by-case nature of fair dealing difficult to apply’ and submitted that applying a general set of fairness factors, such as those already existing with respect to the research or study exceptions, may assist in this regard.^[177] The ALRC’s proposals for the repeal of the existing fair dealing exceptions, together with ss 104(b) and (c), and application of the new fair use exception would essentially effect such a change in approach. The fairness factors detailed in Proposal 4–3, along with any other fairness factors considered relevant in a particular case, would be considered in determining whether a particular use constitutes a fair use.

7.86 The ALRC makes two additional proposals concerning the fair dealing exceptions in order to provide an alternative in the event that fair use is not enacted. Many of the complaints raised about the existing fair dealing exceptions would require careful consideration if the purpose-based approach to exceptions were to be retained. The CLRC considered a number of these issues in its 1998 report.

7.87 One issue that was raised in both reviews—which the ALRC considers could be simply rectified— is reform of the professional advice provisions so that they are made more coherent. Accordingly, the first of ALRC’s alternative proposals is that ss 43(2), 104(b) and (c) of the Copyright Act be repealed and new fair dealing exceptions introduced ‘for the purpose of professional advice by a legal practitioner, registered patent attorney or registered trade marks attorney’ for both works and subject-matter other than works. This essentially echoes the CLRC’s recommendations.^[178]

7.88 The second proposal, in the event that fair use is not enacted, is for all existing fair dealing exceptions and the new fair dealing exceptions for professional advice and others that are proposed in various parts of this Discussion Paper, to be subject to the fairness factors in Proposal 4–3. The ALRC considers that this would provide greater consistency across the provisions and should assist in determining their application. One negative would be that such an approach would likely lengthen the provisions.