Fair use promotes public interest and transformative uses

4.65 Copyright has always been concerned with promoting the public interest. The first copyright statute, the Statute of Anne, was ‘an Act for the encouragement of learning ... and for the encouragement of learned men to compose and write useful books’.[80] The monopoly granted was not only to preserve the property rights of the publishers, but to ensure that useful books were written for the public to read. The preamble to the World Intellectual Property Organization Copyright Treaty recognised ‘the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, as reflected in the Berne Convention’.[81] The third framing principle for this Inquiry requires recommendations to ‘promote fair access to content’.

4.66 It has been said that fair use ‘counterbalances what would otherwise be an unreasonably broad grant of rights to authors and unduly narrow set of negotiated exceptions and limitations’.[82] In the words of one group of commentators:

Given expansions to owner rights, the inclusion of ‘large and liberal’ exceptions in copyright legislation is essential to promote important public interest values associated with research and education, access to information, new authorship, fair competition, technological and scientific progress, and cultural, economic and social development.[83]

4.67 One of the notable public interests that fair use will arguably better serve is education. Parts of the educational sector called for a ‘fairer’ policy balance in the Copyright Act.[84] Copyright Advisory Group (CAG) Schools compiled a table comparing a number of differences between the copyright laws that apply to schools in Australia, the US and Canada and submitted that the results suggest that the ‘balance struck in the Australian Copyright Act does not adequately recognise the public interest in allowing limited free uses of copyright materials for educational purposes’.[85]

4.68 Universities Australia stated that Australian universities were in a ‘worse position’ than large commercial enterprises in terms of being able to use third party copyright material for socially beneficial purposes.[86] Commercial news organisations can rely upon the fair dealing exceptions for news reporting but there is no equivalent specific exception for universities for fair use for educational purposes. Universities Australia submitted that, from a policy perspective, ‘this makes little sense’.[87]

4.69 The 2013 Google Books case demonstrates the potential of fair use to advance education and learning and to benefit authors and content owners.[88] Google scanned books and made them available for searching on its website, without seeking rights holders’ permission. A search in Google Books returns a list of books in which the search term appears, a ‘snippet’ (one eighth of a page) from the book, and links to sellers of the books and libraries. In the judgment, the benefits of Google Books were said to be ‘a new and efficient way for readers and researchers to find books’, the facilitation of data and text mining, access for people with print disability, the preservation of old and out of print books, and (because the search results include links to book sellers) increased sales for authors and publishers.[89] The court concluded that the use was transformative, served educational purposes, and did not serve as a market replacement for books, but in fact enhanced the sales of books, and was therefore fair use.

4.70 There will be debate about this decision and an appeal is likely. However, it is important to note that under current Australian law, Google would have been very limited in its ability to establish such a database—even though it does not appear to undermine the position of rights holders. Under fair use, there is scope to use copyright material in an innovative way that can serve the public interest while respecting markets.

4.71 Fair use also promotes, and Australia’s current exceptions now largely neglect, what have been called ‘transformative’ uses. As discussed in Chapter 5, this refers to the use of copyright material for a different purpose than the use for which the material was created.

4.72 This is a powerful and flexible feature of fair use. It can allow the unlicensed use of copyright material for such purposes as criticism and review, parody and satire, reporting the news and quotation. Many of these uses not only have public benefits, but they generally do not harm rights holders’ markets, and sometimes even enlarge them. Fair use is also an appropriate tool to assess whether other transformative uses should be permitted without a licence, such as data mining and text mining, caching, indexing and other technical functions, and a range of other innovative uses.

4.73 The monopoly provided by copyright is vital to allowing creators and rights holders to exploit the value of their works, so as to increase the incentive to create those works—but this monopoly need not extend indefinitely or into markets which the creator had no real interest in exploiting. Copyright must leave ‘breathing room’ for new works and new productive uses that make use of other copyright material.

4.74 This Report discusses the merits of permitting a range of unlicensed uses of copyright material—uses that the ALRC considers benefit the public and neither harm rights holders nor reduce the incentive to create. The following examples of such uses that Australia’s current exceptions may unnecessarily prohibit or stifle were provided by stakeholders:[90]

  • accessible formats of texts for blind or vision impaired persons;

  • caching and indexing by search engines and internet service providers;

  • the sparing and appropriate incorporation of third party copyright material into educational course content delivered via massive open online courses (MOOCs);

  • placing development applications, including architects’ plans, surveys, and environmental impact statements, on a website for the purpose of public consultation;

  • the communication to the public of the datasets underlying research results that could assist in independent verification of those results, particularly for online qualitative research;

  • use of copyright material with no owner that can be identified—known as ‘orphan works’;

  • use of technologies that analyse copyright material looking for patterns and trends—known as ‘data mining’;

  • copying legally acquired copyright material between computers and other devices for personal use;

  • storing legally acquired copyright material on remote servers;

  • using material to satisfy personal curiosity, rather than to undertake formal research;

  • the communication to the public of works created by students and researchers using museum collections;

  • use of third party images or text in a presentation to illustrate the point being made;

  • use of short quotations in academic publications;

  • a university’s creation of an open digital repository of theses and other research publications;

  • sharing copyright works with colleagues for the purpose of discussion, including a university’s reproduction and distribution of reference material to a research team;

  • the use by a student of extracts from a state Hansard or state government media releases in a play;

  • the reproduction of a passage from a book in a review of a film based on the book;

  • copying portions of a confidential document, such as a Cabinet minute, for the purpose of commenting on a matter of public importance;

  • use of material to support commentary or the expression of opinion rather than reporting of events—for example, humorous topical news programmes or some types of newspaper opinion piece;

  • some practices that go beyond parody or satire, such as pastiche or caricature;

  • professional legal or law-related services such as preparing and executing agreements, preparation of trade mark or patent applications, mediation, alternative dispute resolution, or arbitration;

  • 3D printing; and

  • copying for the purpose of back-up and data recovery.