Reducing complexity

7.62 The CLRC’s simplification review is a key related review. The consolidation and expansion of the fair dealing purposes to an open-ended model was an important aspect of the CLRC’s review in 1998. Further, the CLRC recommended that the fair dealing provisions be simplified by:

• absorbing the provisions relating to the acts done for the purpose of professional advice in relation to subject matter other than works (ss 104(b) and 104(c)) within fair dealing; …

• removing the provisions that require sufficient acknowledgment in relation to fair dealings for the purpose of reporting news (ss 42(1)(a) and 103B(1)(a)); and

• adopting a modified quantitative test (s 40(3)).^[138]

7.63 With respect to the third point, the Copyright Amendment Act 2006 (Cth) repealed the former s 40(3) and (4) and substituted new s 40(3)–(8)^[139] to improve clarity and certainty with respect to the quantitative test in s 40.^[140]

7.64 In the Issues Paper, the ALRC invited comments on how the fair dealing exceptions might usefully be simplified or made more coherent.

7.65 A few submissions, notably from those representing rights holders, argued that there was no need for, or benefit to be obtained from, simplification of the fair dealing exceptions.^[141] The Music Council of Australia submitted that to the extent that the exceptions are complex, any problems could be ‘overcome by the Government providing explanatory material and guidelines which address operational issues’; that is, information on the practical operation of the exceptions.^[142]

7.66 SBS held the view that the fair dealing exceptions for the purpose of criticism, review, reporting news, parody and satire—upon which it ‘relies strongly’—‘are clear and well established’ so it ‘would not support any change’ to the provisions.^[143] Notwithstanding its comments that some of these provisions are unclear and would benefit from greater consistency, the ABC held the view that the fair dealing exceptions could not be usefully simplified. It submitted that compared with other provisions in the Copyright Act, these provisions ‘are relatively technology neutral and simply drafted’. It was concerned that ‘[t]oo much prescription could narrow the exceptions and remove flexibility in the digital environment’.^[144]

7.67 AAP was concerned that consolidation of all aspects of the fair dealing provisions into a single omnibus provision, which it may have incorrectly understood the CLRC’s model to be,^[145] ‘risk[s] generating unnecessary confusion and uncertainty’.^[146] Its reasons included the failure to account for nuances such as the requirement to provide sufficient acknowledgment and the omission of certain language which risks changing the meaning of the exceptions.^[147]

7.68 By contrast, a number of other submissions were of the view that the fair dealing exceptions could be usefully simplified or made more coherent, including by:

• consolidation of the exceptions;

• greater consistency between the exceptions;

• narrowing the scope of the exceptions; and

• broadening the scope of the exceptions by enacting a broad, flexible open-ended exception for fair use.

7.69 Some submissions supported the consolidation or simplification of the existing fair dealing exceptions, with some of these submissions supporting expansion of the existing purposes by way of an open-ended exception,^[148] and others opposing this aspect.^[149]

7.70 Foxtel submitted that simplification of the Copyright Act would be ‘in the best interests of industry and consumers’—provided this could be achieved without upsetting the existing ‘balance’.^[150] However, ARIA saw ‘little reason’ to introduce a consolidated—but not expanded—model for fair dealing as it considered that it would result in only ‘a modest degree of simplification’, given the structure of the Copyright Act, which distinguishes between works and subject-matter other than works.^[151]

7.71 Some submissions were ‘concerned’ about the possible results of a simplified and consolidated fair dealing provision.^[152] The Business Software Alliance was concerned it may lead to uncertainty and the Arts Law Centre of Australia was concerned that such a provision ‘could have the unintended result of substantially changing the law’.^[153]

7.72 A few submissions advocated greater consistency between the provisions.^[154] The Internet Industry Association noted the inconsistency as to the extent of copying permitted and the requirement to provide sufficient acknowledgment and submitted that ‘[a]s far as reasonably possible each fair dealing right should apply to the same set of rights and be subject to the same conditions’.^[155] The ABC submitted that there should be consistency of application between the exceptions with respect to ‘works’, ‘subject-matter other than works’ and ‘performances’.^[156] It provided an example of existing inconsistency between the fair dealing exceptions as they apply to performances:

when reviewing a script of a film, the use of the cinematograph film and sound track and other underlying works would be permitted under s 41. However, a critique of a performance under s 248A in the definition of exempt recording (f) and (fa) (where arguably the review or critique must be of the performance) does not permit the use of other underlying works associated with that critique (and vice versa).^[157]

7.73 Some submissions suggested other reform options to simplify the fair dealing exceptions. Some of these would operate to narrow the scope of the exceptions while others would broaden the scope.

7.74 Copyright Agency/Viscopy proposed a number of changes that arguably would narrow the scope of the exceptions. It considered that the following changes would improve consistency and simplicity:

• a requirement in all cases that the source and author be acknowledged;

• an obligation to retain any rights management information (eg metadata);

• an express condition that the exception not apply if there is a licensing solution applicable to the user; and

• an express condition that the other factors in section 40(2) apply to all fair dealings.^[158]

7.75 It also called for s 40(3)—relating to the quantitative test for the fair dealing exception for the purpose of research or study with respect to works—to be amended so that it presumes, rather than deems, the use of a ‘reasonable portion’ to be fair, viewing this as ‘a more equitable outcome’.^[159] In its supplementary submission, Copyright Agency/Viscopy noted s 40(5) effectively deems ‘a reproduction for research or study of 10% of the pages, or a chapter, of a work in an edition (or 10% of the words of a work in electronic form)’ as ‘fair, irrespective of whether or not the use would be fair if the criteria in section 40(2) were applied’.^[160] It agreed with the education sector that there should not be a prescribed proportion of work whose use is deemed to be ‘fair’.^[161]

7.76 The Copyright Advisory Group—Schools submitted that a quantitative-based deeming provision should not be included in an open-ended fairness provision.^[162] As discussed, the CLRC had also been of this view.^[163] It is important to note that the Schools did not appear to be advocating the removal of this aspect of the fair dealing exception for research or study alone but rather it was in the context of their call for the introduction of a new open-ended, flexible exception.