Fair use builds on Australia’s fair dealing tradition

4.31 Far from being a ‘radical’ exception, fair use is an extension of Australia’s longstanding and widely accepted fair dealing exceptions. The principles encapsulated in fair use and fair dealing exceptions also have a long common law history, traced back to eighteenth century England.[29]

4.32 Many of the benefits of fair use, discussed in this chapter and throughout the Report, are also benefits of the fair dealing exceptions. Both require an assessment of fairness in light of a set of principles.

4.33 The crucial difference between the exceptions is that fair dealing is confined to prescribed purposes—or types of use—while fair use is not. The ALRC considers that there is no need to confine fairness exceptions to a set of prescribed purposes. By recommending fair use, the ALRC may, in essence, merely be removing an unnecessary restriction on Australia’s existing fair dealing exceptions.[30]

4.34 Australian legislation first used the expression ‘fairly dealing’ in its Copyright Act 1905 (Cth)—the first common law country to do so.[31] There are five fair dealing exceptions in the current Copyright Act, one for each of the following purposes:

  • research or study;[32]
  • criticism or review;[33]
  • parody or satire;[34]
  • reporting news;[35] and
  • a legal practitioner, registered patent attorney or registered trade marks attorney giving professional advice.[36]

4.35 Applying a fair dealing exception is a two-step process. First, the use must be for one of the specific purposes listed in the Copyright Act. Secondly, the use must be fair. Fairness factors are specified in the statute for uses for research and study, but for other fair dealings, fairness is left to the common law.[37] Fair use removes this first step—the purposes listed in the fair use exception are merely illustrative. This means that fair use can be applied to a much larger range of use of copyright materials. For some, this makes fair use too broad and uncertain. The ALRC considers that this makes the provision more flexible, and that the question of fairness in light of the fairness factors sufficiently confines the exception. Fair use may permit more unlicensed uses than the existing fair dealing exceptions, but only fair uses—transformative uses, and uses that will not unfairly harm rights holders.

4.36 Fair use improves upon the current fair dealing exceptions in other respects. For example, not all of the current fair dealing exceptions are available for all types of copyright material. Fair use, however, could be applied to any copyright material. This does not mean that fair use will have the same outcome for all types of copyright material. Differences in markets mean that this would not be fair. But fair use at least has the flexibility to ask the question of fairness of any type of use, and any type of copyright material.

4.37 Additional requirements must also be met for some fair dealing exceptions to apply. For example, some require sufficient acknowledgement of the material used.[38] Others include a quantitative test that deems the use of certain quantities of copyright material to be fair.[39] The concept of ‘reasonable portion’ is fixed by reference to chapters, or 10% of the number of pages or number of words.[40] Although such additional requirements could, in theory, be incorporated in a fair use exception, the ALRC favours a less prescriptive provision, with these matters being considered as part of an assessment of fairness. For example, some uses of copyright material are less likely to be fair, if the author or owner of the copyright material is not acknowledged. In this way, fair use accords with the first framing principle, ‘acknowledging and respecting authorship’.

4.38 Fair use builds on Australia’s current fair dealing exceptions, retaining the focus on fairness, but removing unnecessary limitations to particular types of use and clarifying that important factors should be considered when assessing whether any type of use is fair.

[29] For example, see M Sag, ‘The Prehistory of Fair Use’ (2011) 76 Brooklyn Law Review 1371.

[30] A fairness exception like fair use, but confined to a set list of prescribed purposes, is the ALRC’s second best option for reform—a new fair dealing exception, discussed in Ch 6.

[31] M De Zwart, ‘A Historical Analysis of the Birth of Fair Dealing and Fair Use: Lessons for the Digital Age’ (2007) 1 Intellectual Property Quarterly 60, 89.

[32] Copyright Act 1968 (Cth) ss 40(1), 103C(1).

[33] Ibid ss 41, 103A.

[34] Ibid ss 41A, 103AA.

[35] Ibid ss 42, 103B.

[36] Ibid s 43(2). Note s 104(c), which could be seen as the equivalent provision for subject matter other than works, does not in fact use the term ‘fair dealing’. Similarly, ss 43(1), 104(a) (anything done for the purposes of a judicial proceeding or a report of a judicial proceeding) and 104(b) (someone seeking professional advice from a legal practitioner, registered patent attorney or registered trade marks attorney) do not use the term ‘fair dealing’. All of these exceptions are broader than the fair dealing exceptions.

[37] The fairness factors specified for research and study (ss 40, 103C) are likely to be relevant when considering the fairness of dealings for other purposes: Copyright Law Review Committee, Simplification of the Copyright Act 1968. Part 1: Exceptions to the Exclusive Rights of Copyright Owners (1998), [4.09]. See further Ch 5.

[38] The fair dealing provisions for the purpose of criticism or review, and those for the purpose of, or associated with, the reporting of news in a newspaper, magazine or similar periodical contain an additional requirement for a ‘sufficient acknowledgment’ of the work or audio-visual item: Copyright Act 1968 (Cth) ss 41 and 103A (criticism or review); ss 42(1)(a) and 103B(1)(a) (reporting news).

[39] See Ibid s 40(3)–(8) (research or study).

[40] Ibid ss 10, 40, 135ZMDA.