ALRC’s proposals for reform

4.92 The ALRC has considered the various arguments made for and against the enactment of a fair use exception in Australia and concludes that fair use:

  • is suitable for the digital economy and will assist innovation;
  • provides a flexible standard;
  • is coherent and predictable;
  • is suitable for the Australian environment; and
  • is consistent with the three-step test.

Suitable for the digital economy and will assist innovation

4.93 The ALRC considers that fair use would provide flexibility to respond to changing conditions and would assist innovation. These arguments outlined earlier are not repeated here. In the ALRC’s view, a fair use regime will: employ technology neutral legislative drafting; assist predictability in application; minimise unnecessary obstacles to an efficient market; and reduce transaction costs.

4.94 The ALRC considers that a fair use exception is appropriate in the context of the digital economy and considers the proposals for reform in this Discussion Paper are likely to enhance adjustment to the digital environment.

4.95 As the CLRC stated in 1998:

[m]uch of the present complexity in the fair dealing provisions and the miscellany of other provisions and schemes that provide for exceptions to copyright owners’ exclusive rights is due to the fact that they operate on the basis of a particular technology or in relation to dealings with copyright materials in a particular material form.[176]

4.96 This statement is still relevant. Further, it could be said that the digital environment is highlighting and exacerbating the ‘technological redundancy’ of a number of specific exceptions, even those introduced in 2006.[177]

4.97 The ALRC considers that the enactment of fair use would foster an entrepreneurial culture which contributes to productivity. Although ‘the conditions for innovation depend on much more than the details of copyright law, including everything from tax law to the availability of an educated workforce to matters of business culture’,[178] an appropriate regulatory framework is a key aspect to innovation.[179] The ALRC considers that introducing fair use into Australian copyright law would contribute to such an environment and will constitute a measure that will assist in making Australia a more attractive market for technology investment and innovation.

4.98 The Hargreaves Review noted that the economic benefits of fair use ‘may sometimes have been overstated’.[180] However, the report went on to state that intellectual property issues are important for the success of innovative, high technology businesses.[181] The Hargreaves Review noted the introduction of fair use in other jurisdictions, but considered that the ‘very protracted political negotiations’[182] that would result for the UK made it unfeasible in the European context. This does not detract from the substantive merits of fair use for Australia.

4.99 The ACCC espoused the benefits of flexible regulation for business:

By ensuring that regulations remain flexible, regulation will not have the unintended effect of curtailing innovation and the creation of new copyright material. The ACCC considers that there is a fine balance that must be struck between providing certainty and stability in relation to regulation of copyright and providing sufficient flexibility to ensure that industries reliant on copyright can continue to develop and innovate ... The ACCC’s view of stability encompasses the need to ensure that the law can adapt to a rapidly changing technological and consumer environment in order for businesses to have confidence in investing in new products and services.[183]

4.100 Some stakeholders submitted that fair use would not necessarily cause economic harm to rights holders, citing economic studies.[184] Further, Google remarked that many companies are both owners and users of copyright materials and submitted that:

The idea that fair use somehow reduces copyright owners’ rights is belied by the regular practice of large US media companies applying fair use in their every day commercial decisions.[185]

4.101 The ALRC considers that the introduction of a broad, flexible exception for fair use into Australian law should allow flexible and fair mediation between the interests of owners and users in the digital environment.

A flexible standard

4.102 Copyright exceptions that are more like standards than rules will generally be more flexible and better able to adapt to new technologies, services, licensing environments and consumer practices.

4.103 This distinction between rules and standards is commonly drawn in legal theory. Rules are more specific and prescribed. Standards are more flexible and allow decisions to be made at the time of application, and with respect to a concrete set of facts.[186]

4.104 Rules and standards are of course points on a spectrum. Rules are ‘not infinitely precise, and standards not infinitely vague’.[187] The legal philosopher H L A Hart wrote that rules have a core of settled meaning surrounded by a penumbra of uncertainty.[188] The distinction is nevertheless useful.

4.105 Another way of talking about standards is to refer to ‘principles-based’ legislation. In 2002, a study by Australian academic Professor John Braithwaite concluded that, as between principles and rules:

1. When the type of action to be regulated is simple, stable and does not involve huge economic interests, rules tend to regulate with greater certainty than principles.

2. When the type of action to be regulated is complex, changing and involves large economic interests:

(a) Principles tend to regulate with greater certainty than rules;

(b) Binding principles backing non-binding rules tend to regulate with greater certainty than principles alone;

(c) Binding principles backing non-binding rules are more certain still if they are embedded in institutions of regulatory conversation that foster shared responsibilities.[189]

4.106 Standards are becoming more common in Australian law, including, for example, in consumer protection and privacy legislation.

4.107 The well-known prohibition on ‘misleading or deceptive conduct’, previously in s 52 of the Trade Practices Act 1974 (Cth) and now contained in s 18 of the Australian Consumer Law,[190] is an example of this kind of legislative drafting—that is, providing a broad standard that can be applied flexibly to a multitude of possible situations.

4.108 Similarly, the unfair contracts provisions of the Australian Consumer Law provide a simple formulation of when a term of a consumer contract is ‘unfair’. Under that law, a term is unfair when:

(a) it would cause a significant imbalance in the parties’ rights and obligations arising under the contract; and

(b) it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and

(c) it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.[191]

4.109 Such standards are sometimes accompanied by factors a court may, or must, take into account in applying the standard, or examples of when the standard may have been breached, or complied with.

4.110 Again, the Australian Consumer Law provides illustrations of these approaches. The unconscionable conduct provisions contain an extensive, but non-exhaustive, list of factors to which a court may have regard in determining unconscionable conduct.[192] The unfair contracts provisions contain examples of unfair terms.[193]

4.111 There are parallels between these approaches and the ALRC’s proposal for the enactment of a new copyright exception based on a broad standard of fair use, together with fairness factors and illustrative purposes.

4.112 In another field, the Privacy Act 1988 (Cth) is an example of principles-based legislation. The National Privacy Principles and Information Privacy Principles provide the basis for regulating the handling of personal information by private sector organisations and public sector agencies.[194] The principles provide broad standards such as obligations: not to collect personal information unless the information is ‘necessary’; not to use personal information other than for the ‘primary purpose’ of collection; and to take ‘reasonable steps’ to protect personal information from misuse.

4.113 Principles-based regulation was considered the best approach to regulating privacy for several reasons, including that principles have greater flexibility in comparison to rules. That is, being high-level, technology-neutral and generally non-prescriptive, principles are capable of application to all agencies and organisations subject to the Privacy Act, and to the myriad of ways personal information is handled in Australia. Further, principles allow for a greater degree of ‘future-proofing’ and enable the regime to respond to new issues as they arise without having to create new rules.[195] In the ALRC’s view, these rationales can also be seen as applying to the concept of fair use in copyright law.

4.114 The ALRC considers that the potential benefits of enacting fair use outweigh any transaction costs, especially given that the argument that fair use would increase transaction costs often ‘paints an unrealistic picture of the status quo for both owners and users’.[196]

4.115 The ALRC is aware that many stakeholders are opposed to fair use, and yet in their submissions many argue the points that favour the introduction of such a concept. For example, the capacity for business to influence the terms on which licensing should take place and to allow room for industry practice.

4.116 From the user point of view, fair use has the capacity to create more confidence and certainty and reduce transaction costs. There is evidence that the current rule-based approach has not provided certainty.

4.117 One submission observed that:

reliance on rules places a great deal of trust in the ability of the legislature—both intellectually, and as a matter of time and resources—to draft clear, detailed and appropriate exceptions to cover heterogeneous conduct.[197]

4.118 The ALRC considers that it may be more efficient to move to open-ended rather than closed-ended drafting so as to save the legislature from constant law reform to ‘catch up’ with new technologies and uses. Rather, the law could ‘self-update through changes to the interpretative practices of copyright owners, users and the courts’.[198] Of course, the legislature could still act when it wanted to respond to particular developments.[199]

Coherent and predictable

4.119 The choice between standards and rules may also be a choice between simplicity and certainty. In drafting laws, there must necessarily be some compromise. However, a commentator on making laws in the digital environment has written, ‘there should be general agreement that compromise, in the form of a law which is too complex to be understood easily but still contains major uncertainties of meaning, is the worst possible option’.[200]

4.120 Some would say that Australia’s copyright law is uncertain, despite being highly complex and prescriptive. Australia’s existing copyright exceptions are largely made up of rules.

4.121 The ALRC considers that the enactment of a fair use exception in the Copyright Act would not result in excessive uncertainty. First, the current copyright exceptions are also not entirely predictable or certain. Secondly, the ALRC considers that fair use can operate with sufficient certainty.

4.122 A number of stakeholders stated that aspects of the existing regime of specific copyright exceptions and, in some cases statutory licences as well, are uncertain.[201] For example, the fair dealing exceptions, which have been described as ‘ostensibly standard-like’,[202] were criticised for the lack of statutory factors to guide application (other than in the case of research or study). It is possible that ‘a new flexible exception may in fact make Australian law less uncertain when compared with the status quo’.[203] As the fair use provision does contain certain criteria, owners, users and courts do have something to work with.

4.123 The evidence that is available, from recent research, suggests that fair use in the US is not as uncertain as some of its critics have argued.[204]

4.124 In January 2008, Professor Barton Beebe’s empirical study of US fair use case law through to the year 2005 was published.[205] He argued that the results ‘show that much of our conventional wisdom about that case law is mistaken’.[206]

4.125 In 2009, Professor Pamela Samuelson published her ‘qualitative assessment’ of the fair use case law, which was built upon Beebe’s study.[207] Samuelson has argued that ‘fair use is both more coherent and more predictable than many commentators have perceived once one recognizes that fair use cases tend to fall into common patterns’.[208] She has explained that it is generally possible to predict whether a use is likely to be fair use by analysing previously decided cases in the same policy cluster.[209]

4.126 In 2012, Matthew Sag published his work that built upon these two studies.[210] He went further than Samuelson and ‘assesse[d] the predictability of fair use in terms of case facts which exist prior to any judicial determination’.[211] He argued that his work

demonstrates that the uncertainty critique is somewhat overblown: an empirical analysis of the case law shows that, while there are many shades of gray in fair use litigation, there are also consistent patterns that can assist individuals, businesses, and lawyers in assessing the merits of particular claims to fair use protection.[212]

4.127 One stakeholder characterised and dismissed this literature as the work of ‘a small number of US pro fair use academics’,[213] however, other stakeholders referred with approval to this research[214] and also directed the ALRC to further recent empirical research which argues:

a recurring criticism of fair use is that it is inchoate and uncertain, however at least amongst institutions participating in this study, the doctrine was used more broadly and confidently than this perspective might suggest.[215]

4.128 In that study, the fieldwork indicates that ‘fair use can and does play a meaningful role for US cultural institutions, even amongst those who prefer a more restricted interpretation of its application’.[216]

4.129 The US experience and empirical research suggest that certainty can come from things such as guidelines developed by peak bodies, industry protocols, and internal procedures and documentation.[217] As discussed in Chapter 3, the Australian Communications and Media Authority points to the benefits of industry co-regulation and self-regulation in setting standards and developing understanding of practices.[218]

4.130 Further, a number of stakeholders point to the capacity of business, consumers and government to develop an understanding of acceptable practices. The Australian Content Industry Group (ACIG) discussed the benefits of an industry code being developed between the Australian Government and relevant industry participants for a ‘graduated response’ to unauthorised downloading.[219] This has not been concluded, but such a process is a guide as to how an understanding of indicative purposes and factors in legislation can be applied in specific industries and sectors. Indeed, ACIG specifically requested that the ALRC recommend the development of such a code. While this would be technically outside the Terms of Reference for the Inquiry, it provides a useful example of how ‘purpose-based’ legislation may gain an interpretation which serves the needs of all parties.

Suitable for the Australian legal environment

4.131 The ALRC considers that there is nothing so intrinsically American about a fair use exception that one could not be enacted in Australia. Others agree.[220] For example, some stakeholders highlighted American commentaries suggesting that the US First Amendment has made limited direct impact on copyright jurisprudence on fair use.[221] The recognition that copyright protects expression only—not ideas—has been found to be sufficient to protect freedom of expression without the need to substantively engage with the First Amendment.[222]

4.132 Further, what may be regarded as differences between the two legal environments—such as the fact that there is no express recognition of moral rights in the US—may not be so different in practice. One commentator recently remarked that, in fact, ‘the inherent dignity of creators that these rights protect [is] implicit in many copyright provisions’ in the US.[223]

4.133 As mentioned earlier, US ‘fair use’ and English and Australian ‘fair dealing’ share the same common legal sources. UTS law academics submitted:

much turns on the decision of legislators of the 1911 Act to codify the exceptions to copyright in terms that referred to specified defined purposes. Had they not done so, it seems not improbable that we might have ended up with something much more similar to the modern United States law of fair use, which shares more with the case law of the eighteenth and nineteenth century than does the Anglo-Australian modern law of infringement and exceptions.[224]

4.134 The ALRC’s proposed fairness factors derive from the same body of case law upon which the US doctrine developed.

4.135 The Australian Government took a positive view of the harmonisation of Australian intellectual property law with that of the US in the context of the AUSFTA:

The harmonisation of our laws with the world’s largest intellectual property market will provide Australian exporters with a more familiar environment and certain legal environment for the export of value-added goods to the United States. In turn, US investors will be attracted to the Australian market because of greater familiarity and confidence in our legal system.[225]

4.136 However, critics of the extension of copyright term pursuant to the AUSFTA considered that it granted significant benefits to owners without the countervailing fair use doctrine.[226]

4.137 In the words of one stakeholder:

Australia’s copyright laws should seek to align with best practice approaches in other jurisdictions. This is justified both on the grounds of good policy and in recognition of the fact that we compete in a global economy and the law should assist Australian businesses to compete in that global economy.[227]

Consistent with the three-step test

4.138 The ALRC considers that fair use is consistent with the three-step test. A number of stakeholders share this view.[228] Reasons include that:

  • ‘historical and normative’ arguments[229] have been made since the WTO Panel decision[230] which challenge a limited interpretation of the test;[231]

  • the US provision has not been challenged in international fora;[232] and

  • other countries have introduced fair use or extended fair dealing exceptions and have not been challenged in international fora.[233]

4.139 There is significant commentary challenging a narrow interpretation of the three-step test.[234]

4.140 The three-step test was first incorporated into international copyright law during the 1967 Stockholm revision of the Berne Convention.[235] This revision also saw the introduction of the right of reproduction. Those developing the revised treaty text thought it necessary to have a provision setting out a general standard that exceptions to the right of reproduction must meet in order to be permissible.

4.141 As some national laws already contained various exceptions to the right of reproduction, that members to the Berne Convention wanted to retain, those developing the text were mindful that it would be necessary ‘to ensure that this provision did not encroach upon exceptions that were already contained in national laws’ and that ‘it would also be necessary to ensure that it did not allow for the making of wider exceptions that might have the effect of undermining the newly recognized right’.[236]

4.142 A number of submissions[237] referred to Dr Senftleben’s comprehensive study of the three-step test published in 2004.[238] For example, the Copyright Advisory Group—Schools submitted:

Dr Senftleben has shown that the three-step test was intended to reconcile the many different types of exceptions that already existed when it was introduced, and to be an abstract, open formula that could accommodate a ‘wide range of exceptions’.[239]

4.143 Another historical development to note is that in 1996 the three-step test was incorporated into the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT)[240] and WIPO Performances and Phonograms Treaty (WPPT),[241] both sometimes collectively referred to as the WIPO Internet treaties. Article 10 of the WCT applies the three-step test to the rights newly protected under the WCT, such as the right of communication, as well as to those rights already protected by the Berne Convention. Article 16 of the WPPT extends the three-step test so that it is applicable to exceptions to all economic rights of performers and producers of phonograms (that is, some of the holders of so-called related or neighbouring rights).

4.144 The Diplomatic Conference that adopted the WCT and WPPT texts, adopted the following agreed statement in respect of art 10 of the WCT, which applies ‘mutatis mutandis’ to art 16 of the WPPT:[242]

It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment.[243]

4.145 One commentator has observed:

Pursuant to article 31(2)(a) of the Vienna Convention [on the Law of Treaties], ‘any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty’ forms part of the context for the purpose of interpretation. The agreed statement concerning article 10 WCT is thus a relatively strong source of interpretation. ... [I]t must be considered directly in connection with the treaty text itself.[244]

4.146 The CLRC took the view that its extended fair dealing model would be consistent with the three-step test, in part because it considered that its model would be ‘one such appropriate extension into the digital environment’ and so would be ‘in the spirit of art 10’ of the WCT in light of the agreed statement.[245]

No challenges in international fora

4.147 The US has never seriously been challenged about the consistency of its fair use exception with the three-step test.[246] Opportunities for such challenge included the steps taken to adhere to the Berne Convention—‘years of public hearings before the US Congress, as well as numerous consultations with WIPO and foreign experts’[247]—where transcripts of hearings reveal that not once was there considered to be a problem with fair use and the three-step test.[248] Further, one submission referred to a WTO review of copyright legislation in 2006 where in response to a question about the consistency of US fair use with art 13 of TRIPs, the US replied:

The fair use doctrine of US copyright law embodies essentially the same goals as Article 13 of TRIPS, and is applied and interpreted in a way entirely congruent with the standards set forth in that Article.[249]

4.148 Universities Australia made a similar point, submitting:

Hugenholtz and Senftleben have noted that the Minutes of Main Committee for the 1996 WIPO Diplomatic Conference (that led to the adoption of the WIPO Internet Treaties) provide evidence of ‘the determination to shelter use privileges’, including determination on the part of the US to ‘safeguard the fair use doctrine’.[250]

4.149 Finally, a number of other countries have introduced an exception for fair use or extended fair dealing, including: The Philippines, Israel, the Republic of Korea and Singapore.[251] Like Australia, all of these countries are party to the Berne Convention, the WCT and the WPPT, amongst other WIPO treaties, and are WTO members.[252] None of these countries have been challenged in international fora about their enactment of such provisions.

Proposal 4–1 The Copyright Act 1968 (Cth) should provide a broad, flexible exception for fair use.

Proposal 4–2 The new fair use exception should contain:

(a) an express statement that a fair use of copyright material does not infringe copyright;

(b) a non-exhaustive list of the factors to be considered in determining whether the use is a fair use (‘the fairness factors’); and

(c) a non-exhaustive list of illustrative uses or purposes that may qualify as fair uses (‘the illustrative purposes’).

[176] Copyright Law Review Committee, Simplification of the Copyright Act 1968: Part 1: Exceptions to the Exclusive Rights of Copyright Owners (1998), [6.01].

[177] R Burrell and others, Submission 278.

[178] Ibid.

[179] PricewaterhouseCoopers, The Startup Economy: How to Support Start-Ups and Accelerate Australian Innovation (2013).

[180] I Hargreaves, Digital Opportunity: A Review of Intellectual Property and Growth (2011), [5.16].

[181] Ibid, [5.17].

[182] Ibid, [5.18].

[183] ACCC, Submission 165.

[184] Copyright Advisory Group—Schools, Submission 231 citing R Ghafele and B Gibert, The Economic Value of Fair Use in Copyright Law: Counterfactual Impact Analysis of Fair Use Policy On Private Copying Technology and Copyright Markets in Singapore (2012), prepared for Google; Google, Submission 217 citing Lateral Economics, Excepting the Future: Internet Intermediary Activities and the Case for Flexible Copyright Exceptions and Extended Safe Harbour Provisions (2012), prepared for Australian Digital Alliance.

[185] Google, Submission 217.

[186] F Schauer, ‘The Convergence of Rules and Standards’ (2003) (3) New Zealand Law Review 303.

[187] Ibid, 309.

[188] Quoted in Ibid, 308.

[189] J Braithwaite, ‘Rules and Principles: A Theory of Legal Certainty’ (2002) 27 Australian Journal of Legal Philosophy 47, 75.

[190]Competition and Consumer Act 2010 (Cth) sch 2, s 18.

[191] Ibid sch 2, s 24(1).

[192] Ibid sch 2, s 22.

[193] Ibid sch 2, s 25.

[194] From 12 March 2014, the Australian Privacy Principles will replace the National Privacy Principles

and Information Privacy Principles: Privacy Amendment (Enhancing Privacy Protection) Act 2012.

[195] See Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report 108 (2008).

[196] R Burrell and others, Submission 278.

[197] Ibid.

[198] Ibid.

[199] Ibid; Google, Submission 217.

[200] C Reed, Making Laws for Cyberspace (2012), 241.

[201] See, eg, Law Council of Australia IP Committee, Submission 284; R Burrell and others, Submission 278; Law Council of Australia, Submission 263; CSIRO, Submission 242; Copyright Advisory Group—Schools, Submission 231; Telstra Corporation Limited, Submission 222; ARC Centre of Excellence for Creative Industries and Innovation, Submission 208; K Bowrey, Submission 94.

[202] E Hudson, ‘Copyright Exceptions: The Experience of Cultural Institutions in the United States, Canada and Australia’, Thesis, University of Melbourne, 2011, 8.

[203] R Burrell and others, Submission 278.

[204] See, eg, Ibid; Google, Submission 217.

[205] B Beebe, ‘An Empirical Study of US Copyright Fair Use Opinions, 1978–2005’ (2008) 156 University of Pennsylvania Law Review 549. Note that Beebe has updated the results ‘through 2011’ but this work has not yet been published. B Beebe, ‘An Empirical Study of US Copyright Fair Use Cases, 1978–2011’ (Paper presented at Fordham Intellectual Property Law Institute and Emily C and John E Hansen Intellectual Property Institute 20th Annual Intellectual Property Law and Policy Conference, New York, 12–13 April 2012).

[206] B Beebe, ‘An Empirical Study of US Copyright Fair Use Opinions, 1978–2005’ (2008) 156 University of Pennsylvania Law Review 549, 550.

[207] P Samuelson, ‘Unbundling Fair Uses’ (2009) 77 Fordham Law Review 2537, 2542–43.

[208] Ibid, 2541.

[209] Ibid, 2542.

[210] M Sag, ‘Predicting Fair Use’ (2012) 73 Ohio State Law Journal 47.

[211] Ibid, 51.

[212] Ibid, 49.

[213] ARIA, Submission 241.

[214] See, eg, R Burrell and others, Submission 278; Google, Submission 217.

[215] E Hudson, ‘Copyright Exceptions: The Experience of Cultural Institutions in the United States, Canada and Australia’, Thesis, University of Melbourne, 2011, 4.

[216] IbidThesis, 174.

[217] R Burrell and others, Submission 278.

[218] ACMA, Submission 214. See also News Limited, Submission 286.

[219] ACIG, Submission 190. Music Rights Australia also strongly endorses this approach: Music Rights Australia Pty Ltd, Submission 191.

[220] See, eg, R Burrell and others, Submission 278; Copyright Advisory Group—Schools, Submission 231 citing Copyright Review Committee (Ireland), Copyright and Innovation: A Consultation Paper (2012); E Hudson, ‘Copyright Exceptions: The Experience of Cultural Institutions in the United States, Canada and Australia’, Thesis, University of Melbourne, 2011, 8.

[221] R Burrell and others, Submission 278.

[222]Harper & Row Publishers, Inc. v. Nation Enterprises (1985) 471 US 539, 560; Roy Export Co v CBS Inc, 672 F2d 1095 (2nd Cir, 1982), 1099; Sid & Marty Krofft Television Prods Inc v McDonald's Corp, 562 F2d 1157 (9th Cir, 1977), 1170; Eldred v Ashcroft, 537 US 186 (239 F.3d 372, 2003). See also N Netanel, ‘Locating Copyright Within the First Amendment Skein’ 54(1) Stanford Law Review 1, 3–4.

[223] T Hart, Calculating Copyright: National Research Council Releases Copyright Report <www.copyhype.com/2013/05/calculating-copyright-national-research-council-releases-copyright-report/> at 7 May 2013.

[224] Members of the Intellectual Property Media and Communications Law Research Network at the Faculty of Law UTS, Submission 153.

[225] National Impact Analysis, Regulation Impact Statement Australia-United States Free Trade Agreement (2004), 7.

[226] A Stewart, P Griffith and J Bannister, Intellectual Property in Australia (4th ed, 2010), 255, [8.36].

[227] Optus, Submission 183.

[228] See, eg, R Burrell and others, Submission 278; R Giblin, Submission 251; Universities Australia, Submission 246; Copyright Advisory Group—Schools, Submission 231; Google, Submission 217.

[229] R Burrell and others, Submission 278.

[230] World Trade Organization, Panel Report on United States–Section 110(5) of the US Copyright Act, WT/DS160/R (2000).

[231] R Burrell and others, Submission 278, citing Lionel Bently, William Cornish, Graeme Dinwoodie, Josef Drexl, Christophe Geiger, Jonathan Griffiths, Reto Hilty, Bernt Hugenholtz, Annette Kur, Martin Senftleben and Uma Suthersanen; Universities Australia, Submission 246, citing the work of Senftleben, Hugenholtz, and Geiger; Copyright Advisory Group—Schools, Submission 231 citing the work of Senftleben; Google, Submission 217, citing the work of Senftleben. See also M Sag, The Imaginary Conflict Between Fair Use and International Copyright Law <http://matthewsag.com/> at 25 March 2013.

[232] R Giblin, Submission 251; Universities Australia, Submission 246; Copyright Advisory Group—Schools, Submission 231; Google, Submission 217. See W Patry, Patry on Fair Use (2012), 554–57; W Patry, Fair Use and Fair Dealing (2008).

[233] G Pessach, ‘The New Israeli Copyright Act: A Case-Study in Reverse Comparative Law’ (2010) 41 International Review of Intellectual Property and Competition Law 187, 192–93.

[234] See, eg, see R Burrell and others, Submission 278 and the many references cited.

[235]Berne Convention for the Protection of Literary and Artistic Works (Paris Act), opened for signature 24 July 1971, [1978] ATS 5 (entered into force on 15 December 1972).

[236] S Ricketson, WIPO Study on Limitations and Exceptions of Copyright and Related Rights in the Digital Environment (2003), prepared for the World Intellectual Property Organization Standing Committee on Copyright and Related Rights Ninth Session, 20.

[237] See, eg, R Burrell and others, Submission 278; Universities Australia, Submission 246; Copyright Advisory Group—Schools, Submission 231; Google, Submission 217.

[238] M Senftleben, Copyright, Limitations and the Three-Step Test: An Analysis of the Three-Step Test in International and EC Copyright Law (2004).

[239] Copyright Advisory Group—Schools, Submission 231.

[240]World Intellectual Property Organization Copyright Treaty, opened for signature 20 December 1996, ATS 26 (entered into force on 6 March 2002). There was another ‘double insertion’. The first insertion is by operation of art 1(4) of the WCT which incorporates art 9(2) of the Berne Convention into the WCT. The second insertion is by operation of art 10 of the WCT.

[241]World Intellectual Property Organization Performances and Phonograms Treaty, opened for signature 20 December 1996, ATS 27 (entered into force on 20 May 2002).

[242]Agreed statements concerning WIPO Performances and Phonograms Treaty, adopted by the Diplomatic Conference on December 20, 1996, concerning art 16.

[243]Agreed Statements Concerning the WIPO Copyright Treaty,, adopted by the Diplomatic Conference on 20 December 1996, concerning art 10.

[244] M Senftleben, Copyright, Limitations and the Three-Step Test: An Analysis of the Three-Step Test in International and EC Copyright Law (2004), 106.

[245] Copyright Law Review Committee, Simplification of the Copyright Act 1968: Part 1: Exceptions to the Exclusive Rights of Copyright Owners (1998), 54.

[246] R Giblin, Submission 251; Universities Australia, Submission 246; Copyright Advisory Group—Schools, Submission 231; Google, Submission 217.

[247] W Patry, Fair Use and Fair Dealing (2008), 8.

[248] Ibid.

[249] R Giblin, Submission 251. See W Patry, Patry on Fair Use (2012), 554–57. Giblin notes the response was accepted.

[250] Universities Australia, Submission 246 citing B Hugenholtz and M Senftleben, Fair Use in Europe: In Search of Flexibilities (2011), 22.

[251]Copyright Act 1987 (Singapore) ss 35, 109.

[252] The fact that these other countries have fair use provisions is insufficient to constitute ‘subsequent practice’ for the purpose of the interpretation of TRIPs. See Vienna Convention on the Law of Treaties, 22 May 1969, 1155 UNTS 331 (entered into force on 27 January 1980), art 31(3)(b); M Senftleben, Copyright, Limitations and the Three-Step Test: An Analysis of the Three-Step Test in International and EC Copyright Law (2004), 108–9; M Lennard, ‘Navigating by the Stars: Interpreting the WTO Agreements’ (2002) 5 Journal of International Economic Law 17, 32–35.