Defining ‘non-consumptive’ use

8.4 In 2011, the Hargreaves Review recommended that the UK implement an exception for ‘non-consumptive use’, which was defined as use of a work enabled by technology which does not trade on the underlying creative and expressive purpose of the work:

The idea is to encompass the uses of copyright works where copying is really only carried out as part of the way technology works. For instance, in data mining or search engine indexing, copies need to be created for the computer to analyse; the technology provides a substitute for reading all the documents ... that these new uses happen to fall within the scope of copyright regulation is essentially a side effect of how copyright has been defined, rather than being directly relevant to what copyright is supposed to protect.[1]

8.5 The digital age has seen the emergence of many ‘copy-reliant technologies’ such as search engines, which copy expressive works for non-expressive aims.[2] US Professor Matthew Sag has written that:

because expressive communication to the public implicitly defines and limits the extent of the copyright owner’s exclusive rights, acts of copying that do not communicate the author’s original expression to the public do not generally constitute copyright infringement.[3]

8.6 The idea that certain non-consumptive or non-expressive uses ought not to be protected by copyright can be traced to a fundamental distinction in copyright law: that between ideas and expression.[4] Australian and overseas courts have reiterated that copyright law does not exist to protect facts or information, but the expression of ideas and information.[5] Sag notes that the ideas/expression distinction is central to balancing the interest of authors in preventing exploitation of their works and society’s interest in the free flow of ideas, information and commerce:

Subsequent authors may not compete with the copyright owner by offering her original expression to the public as a substitute for the copyright owner’s work, but they are free to compete with their own expression of the same facts, concepts and ideas.[6]

8.7 This distinction is also drawn by Professor Kathy Bowrey, although she refers to the term ‘culturally meaningful uses’:

The economic logic of copyright is tied to a cultural logic. That a use such as caching can be assigned an economic value does not justify a copyright return. A copyright owner’s right is a right to control culturally meaningful uses, not every use of a work. To maintain the integrity and consistency of copyright’s logic, dealings with mere data should be distinguished from culturally meaningful dealings with copyright works and subject-matter.[7]

8.8 Two types of uses identified in the Issues Paper are discussed below. These relate to caching, indexing and other internet functions; and data and text mining. In both instances, the ALRC considers that such uses should be considered under the fair use exception. Alternatively, if fair use is not enacted, they should be considered under a new fair dealing exception for ‘non-consumptive’ use.

[1] I Hargreaves, Digital Opportunity: A Review of Intellectual Property and Growth (2011), 47.

[2] M Sag, ‘Copyright and Copy-Reliant Technology’ (2009) 103(4) North Western University Law Review 1607, 1608.

[3] Ibid, 1609.

[4] A Stewart, P Griffith and J Bannister, Intellectual Property in Australia (4th ed, 2010), 154.

[5] See eg, Ice Tv Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458; Feist Publications, Inc., v Rural Telephone Service Co, (499 U.S. 340, 1991).

[6] M Sag, ‘Copyright and Copy-Reliant Technology’ (2009) 103(4) North Western University Law Review 1607, 1629.

[7] K Bowrey, Submission 94.