An alternative—a new confined exception

9.77 It has been argued that fair use may not allow for a sufficiently wide range of private and domestic uses—particularly for uses that are non-transformative, for example copying an entire film or television program from one format to another.

9.78 The US Supreme Court has held that transformative works do not ‘merely supersede the objects of the original’, but instead ‘add something new, with a further purpose or different character, altering the first with new expression, meaning, or message’.^[61] US copyright academic Ashley Pavel has argued that fair use is ‘inadequate due to the difficulty of proving that a personal copy is transformative’. Although the Supreme Court had ruled that using a video recorder to time shift television broadcasts was fair use, ‘many distributors of newer technologies allowing analogous uses have been found to be infringing or sued out of existence’.^[62]

9.79 Furthermore, private and domestic uses are increasingly offered for licence by content owners. Unremunerated uses may harm this market, which may make such uses less likely to be fair. The ALRC argues that this reasoning is one of the benefits of fair use. For others, including Pavel, this unreasonably confines fair use:

With the advance of technology, personal use copies are no longer beyond the reach of copyright owners … [A]bsent a strong legislative statement that personal use copies should be beyond the reach of copyright liability, it is only a matter of time before the fair use feedback loop consumes personal use copying, and extends the prying eyes of copyright enforcers into the privacy of the user’s home.^[63]

9.80 Pavel recommends that the US Copyright Act be amended to include a specific private use exception in the following terms:

private uses of works protected under this title shall not give rise to any cause of action. Private uses are to include any use of a work in the personal sphere or within a circle of persons closely connected to each other, such as relations or friends. Third parties who enable such private uses are not subject to liability under this title.^[64]

9.81 The Law Institute of Victoria submitted that, if a fair use exception is not accepted, ‘then a separate, single exception should be introduced, along the lines of Canada’s Copyright Modernization Act 2012 (Can)’.^[65] Rather than a separate format shifting exception for each type of work (one for films, one for music, etc), each with its own conditions, Canada’s Copyright Act contains only one exception for reproductions for private purposes. This exception applies to ‘a work or other subject-matter or any substantial part of a work or other subject-matter’.^[66]

9.82 Some submissions opposed the introduction of a new private copying exception. The Australian Film and Television Bodies submitted that:

With the existing scale of online copyright infringement, particularly of motion pictures and television programs, the risks associated with an overly permissive, non-conditional and format agnostic private copying exception is likely to result in a free-for-all in Australia and one that has no parallel internationally.^[67]

9.83 If neither a fair use, nor a fair dealing for private and domestic use, exception is enacted in Australia, then the ALRC suggests that the existing private copying exceptions in the Copyright Act should be consolidated and simplified. Such an exception would not refer to fairness factors, but would instead simply describe the circumstances in which a private or domestic copy might be made.

9.84 However, in the absence of a fairness test, the ALRC fears such an exception may be too broad, and furthermore, likely to date as technology changes. It would also be inflexible, and may hinder the development of new technologies and services.