Social uses

9.85 Some social uses of copyright material would be fair use. However, sharing content outside the domestic sphere is less likely to be fair—particularly if the use is non-transformative and harms a market that rights holders should be entitled to exploit. The ALRC does not propose that ‘social uses’ be included as an illustrative purpose for fair use; nor does the ALRC propose a new fair dealing exception for social uses.

9.86 Transformative uses of copyright material are discussed in Chapter 10. However, many online uses of copyright material are not transformative, and some are clearly not fair. Arguably the ‘sharing’ of copyright content that is most unfair and causes the greatest damage to rights holders is the use of peer-to-peer file sharing networks, digital lockers and other means to exchange entire films, television programs, music and e-books.

9.87 Some submissions stressed that some so-called ‘social’ uses of copyright material must not be confused with true private and domestic uses. The Music Council of Australia said that a ‘clear distinction must be drawn between burning a compilation CD at home to play on the kitchen stereo, on the one hand, and disseminating to 800 “friends” via social media such as Facebook’.[68]

9.88 However, many other ‘sharings’ of copyright material—for example, some sharing of user-generated content[69]—are arguably less harmful and now commonplace. These may even include uses that are unlicensed, not transformative, and feature on commercial platforms.

9.89 Existing exceptions, such as the one for parody or satire,[70] may apply to some user-generated content that uses copyright materials. However, much user-generated content will not be covered by these existing exceptions—for example, using a copyright sound recording in a home video.

9.90 Some of these uses of copyright material have been called not only an inevitable, but a desirable, feature of a new digital age. Jeff Lynn, chairman of the UK Coalition for a Digital Economy has written that this ‘incidental’ sort of copyright infringement is ‘part and parcel of using the internet and participating in innovation’:

It is simply impossible to confirm the rights to every image, block of text or sound clip that one shares with friends on Facebook or incorporates into a home video to send to the grandparents.

And while this sort of copying may not always be innovative itself, its inextricable link with the highly innovative activities associated with Internet use means that quashing it results in quashing a lot of collateral good. At the same time, this type of infringement has no real effect on the rights holders … any hypothetical loss from the failure of a handful of people to buy a licence to a given work shared casually among a small network is not only negligible but it is almost certainly outweighed by the discovery advantages.[71]

9.91 While they may be infringing copyright, individuals who upload copyright material onto social websites—such as YouTube—are not often the subject of legal action by rights holders. The ALRC understands that rights holders increasingly work with internet platforms to manage content by other means. For example, in the case of YouTube, rights holders may choose to ‘monetize, block or track’ the use of their content.[72]

9.92 The ALRC agrees with the Copyright Council Expert Group’s observation that user-generated content ‘reflects a full spectrum of creative and non-creative re-uses’ and should not automatically qualify for protection under any proposed exception aimed at fostering innovation and creativity.[73]

9.93 Non-transformative social uses of copyright material that do not fall into one of the categories of illustrative purposes for fair use, proposed in Chapter 4, are less likely to be fair than a transformative use that does fall into one of those categories. However, some of these uses may be fair, and are best considered on a case-by-case basis, applying the fairness factors in the fair use exception. It is doubtful that attempting to prescribe types of social uses that should not infringe copyright would be beneficial. Attempts to distinguish between types of user-generated content without using general fairness principles seem unlikely to be successful.

[68] Music Council of Australia, Submission 269.

[69] Content made publicly available over the internet, which ‘reflects a certain amount of creative effort’ and is ‘created outside of professional routines and practices’. User-generated content includes, for example, audio-visual excerpts from copyright material, such as movies or music, perhaps associated with commentary by the individual: Organisation for Economic Co-operation and Development, Participative Web and User-Created Content (2007), 9.

[70] Copyright Act 1968 (Cth) ss 41A, 103AA.

[71] J Lynn, Copyright for Growth in Lisbon Council, Intellectual Property and Innovation: A Framework for 21st Century Growth and Jobs (2012), Ian Hargreaves (ed.), Paul Hofheinz (ed.), 15.

[72] YouTube, Content ID <> at 24 July 2012.

[73] Copyright Council Expert Group, Directions in Copyright Reform in Australia (2011), 2.