9.1 Australia should continue to allow exceptions for certain uses of copyright material for private and domestic purposes. Some of these uses do not greatly affect the market for the material, and will not reduce incentives to create. Private copying and use of copyright material is a common occurrence, and is often factored into the price of the material.
9.2 However, private uses of copyright material are not always fair. Sometimes they may harm a market that a rights holder should be able to exploit. This chapter proposes that the fair use exception should be applied when determining whether a private and domestic use infringes copyright.
9.3 ‘Private and domestic use’ should also be an illustrative purpose in the proposed fair use exception, to signal that many private uses may be fair. This does not mean that all private and domestic uses are fair—the fairness factors in the fair use exception must be considered.
9.4 As discussed in Chapter 5, the fair use exception should also be applied when determining whether a third party who uses copyright material to facilitate a private and domestic use infringes copyright.
9.5 If fair use is not enacted, the Copyright Act should provide for a new fair dealing exception for private and domestic use.
9.6 Either way, the existing private copying exceptions in the Copyright Act for format shifting and time shifting should be repealed. They are too prescriptive and inflexible to keep up with an evolving digital environment.
9.7 Private and domestic use is a much narrower concept than ‘social use’. Some social uses of copyright material—for example in creating and sharing user-generated content—may be fair, particularly when transformative. Such social uses can be considered under the fair use exception. But the ALRC does not propose that ‘social uses’ be an illustrative purpose in the fair use exception, or otherwise be given any special stature in copyright exceptions.