Online use for social, private or domestic purposes

95. This section discusses the use of copyright materials by individuals for ‘social, private or domestic purposes’, as referred to in the Terms of Reference.

96. The main example of such uses—and the focus of this discussion—is the uploading and sharing on the internet of non-commercial ‘user-generated content’ including in social networking.^[108] User-generated content may be uploaded onto internet websites by individuals for commercial or non-commercial purposes.

97. The Organisation for Economic Co-operation and Development has defined ‘user-created content’ as 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.^[109]

98. While such content may involve creative use of copyright material, the use is not necessarily ‘transformative’, as that term is used in the following section, or involve the creation of what may be recognised as cultural works.

99. The Copyright Council Expert Group observed 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.^[110]

Current law

100. Existing exceptions may apply to some user-generated content using copyright materials including fair dealing for the purposes of criticism or review;^[111] and parody or satire.^[112] However, much user-generated content will not fit within the ambit of these exceptions—for example, using a copyright sound recording in a home video.

101. 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.^[113]

Options for reform

102. It has been suggested that a new specific exception should be introduced in the Copyright Act to allow individuals to make user-generated content, where this does ‘not unjustifiably harm copyright owners’.^[114]

103. In the US, fair use doctrine is capable of covering some private or personal use of copyright materials including some not encompassed in the list of six illustrative purposes that may qualify as fair use.^[115]

104. It has been suggested that US law should also provide that ‘private, non-commercial copies’ be presumed fair, and that presumption only be overcome if ‘copyright owners bring forward proof that the defendants’ use has, in fact, harmed the market for their work or at least poses a meaningful likelihood of such harm’.^[116]

105. Any new broad flexible exception based on a concept of ‘fair’ or ‘reasonable’ use may also allow individuals more leeway to use copyright materials for social, private or domestic purposes.^[117]

Discussion

106. Commenting on US law, Professor Pamela Samuelson identifies a number of reasons why ‘private and personal uses’ of copyright material should either be given a broad scope of fair use (under US fair use doctrine) or excepted from copyright control. These reasons include that private and personal uses:

• generally do not interfere with commercial exploitation of copyright material;

• may be within the ‘sphere of reasonable and customary activities’ that copyright owners should expect from consumers;

• often involve use of copyright material for the purposes of individual self-expression;

• are generally ‘infeasible to regulate’ because of the difficulties and costs required to enforce copyright in spaces where these uses often take place; and

• generally preclude the formation of viable markets for copyright licences.^[118]

107. Samuelson also suggests that ‘ordinary people do not think copyright applies to personal uses of copyrighted works and would not find acceptable a copyright law that regulated all uses they might make of copyrighted works’.^[119]

108. Although this analysis is grounded in US law, and fair use doctrine in particular, the ALRC is interested in comments on whether similar reasons may justify excepting some uses of copyright materials in creating user-generated content from the scope of copyright infringement.

109. One consideration is that such an exception, by expanding the permissible use of copyright materials online, may have consequences for the liability of internet platforms and telecommunications providers under copyright law. In particular, if the scope of primary copyright infringement is narrowed in this way, the legal incentives for carriage service providers to cooperate with copyright owners in deterring copyright infringement on their networks under the ‘safe harbour’ scheme provided by the Copyright Act may be reduced.^[120]

110. A range of other questions arise in relation to how any such exception might be framed. For example, how would the concept of ‘social’ or ‘private and personal’ use of copyright material be defined? Importantly, assuming the exception were limited to ‘non-commercial’ use of copyright material, how would this element be defined?