Repeal of existing exceptions

10.113 The existing exceptions for time shifting and format shifting in the Copyright Act should be repealed. Most stakeholders that supported the introduction of fairness exceptions agreed that if such exceptions were enacted, the existing private copying exceptions could be repealed.

10.114 A few stakeholders suggested that the existing private copying exceptions should be repealed, but not replaced with fair use or other private copying exceptions. The Australian Film and TV Bodies submitted that the exceptions for time shifting broadcasts and format shifting VHS tapes should be repealed, because they were no longer necessary.[91] The Australian Copyright Council said that given the criticism of the existing exceptions for private use, the exceptions should be repealed.[92]

10.115 However, the ALRC recommends the existing exceptions for private use only be repealed if fair use or the new fair dealing exception is enacted.

Recommendation 10–1 The exceptions for format shifting and time shifting in ss 47J, 109A, 110AA and 111 of the Copyright Act should be repealed. The fair use or new fair dealing exception should be applied when determining whether a private use infringes copyright.

[91] Australian Film/TV Bodies, Submission 739: ‘The growth of the digital market for feature films and television programs and the decline in sales of analogue recording equipment and mediums means that ss 111 and 110AA are no longer necessary.’

[92] Australian Copyright Council, Submission 654.