What is fair use?

4.8 Fair use is a statutory provision that provides that a use of copyright material does not infringe copyright if it is ‘fair’, and that when considering whether the use is fair, certain principles or ‘fairness factors’ must be considered. The provision also includes a list of ‘illustrative purposes’.

4.9 Most fair use provisions around the world list the same four fairness factors. These are also factors that appear in the current Australian exceptions for fair dealing for the purpose of research or study.[1] The four fairness factors are non-exhaustive; other relevant factors may be considered.

4.10 In other jurisdictions, fair use provisions set out illustrative purposes—these are examples of broad types or categories of use or purposes that may be fair. A particular use does not have to fall into one of these categories to be fair. This is one of the key benefits of fair use. Unlike the fair dealing provisions, fair use is not limited to a set of prescribed purposes.

4.11 Further, just because a use falls into one of the categories of illustrative purpose, does not mean that such a use will necessarily be fair. It does not even create a presumption that the use is fair. In every case, the fairness factors must be ‘explored, and the results weighed together, in light of the purposes of copyright’.[2]

4.12 Fair use largely codifies the common law and shares the same common law sources as fair dealing.[3] One stakeholder stated that fair use has ‘always been an integral part of copyright law in the common-law world, and it is the notion of an exhaustive list of statutory exceptions that is foreign’.[4] Fair use has been enacted in a number of countries,[5] most notably in the US.[6]

4.13 The codification of fair use in the US took effect in 1978. The intention was to restate copyright doctrine—‘not to change, narrow, or enlarge it in any way’.[7] There was no intention ‘to freeze the doctrine in the statute, especially during a period of rapid technological change’.[8] Section 107 of the US Copyright Act provides:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

(2) The nature of the copyrighted work;

(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) The effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

[1] Copyright Act 1968 (Cth) ss 40(2), 103C(2), 248A(1A).

[2] Campbell v Acuff-Rose Music Inc (1994) 510 US 569, 577.

[3] See, eg, W Patry, Patry on Fair Use (2012), 9–10; M Sag, ‘The Prehistory of Fair Use’ (2011) 76 Brooklyn Law Review 1371; A Sims, ‘Appellations of Piracy: Fair Dealing’s Prehistory’ (2011) Intellectual Property Quarterly 3; M Richardson and J Bosland, ‘Copyright and the New Street Literature’ in C Arup (ed) Intellectual Property Policy Reform: Fostering Innovation and Development (2009) 199, 199; R Burrell and A Coleman, Copyright Exceptions: The Digital Impact (2005), 253–264; Copyright Law Review Committee, Copyright and Contract (2002), 25.

[4] A Katz, Submission 606. See also K Bowrey, Submission 554 (‘Twentieth century copyright legislation, which utilised the term fair dealing instead of fair use, was not designed to ... constrain flexible approaches to judicial interpretation of rights’ ).

[5] See, eg, Copyright Act 1967 (South Korea) art 35–3; Copyright Act 2007 (Israel) s 19; Intellectual Property Code of the Philippines, Republic Act No 8293 (the Philippines) s 185.

[6] Copyright Act 1976 (US) s 107.

[7] United States House of Representatives, Committee on the Judiciary, Copyright Law Revision (House Report No. 94-1476) (1976), 5680.

[8] Ibid.