Reviews that have considered fair use

4.13 The Terms of Reference direct the ALRC to take into account recommendations from related reviews. A number of reviews, in Australia and in other jurisdictions, have considered the merits, or otherwise, of introducing fair use.

Recent international reviews

4.14 The Hargreaves Review was specifically asked to investigate the benefits of a fair use exception and how these benefits might be achieved in the United Kingdom (UK).^[8] The Review expressed regret that it could not recommend that the UK promote a fair use exception to the European Union (EU)—‘the big once and for all fix’^[9]—as it had been advised that there would be ‘significant difficulties’ in attempting to transpose US-style fair use into European law.^[10]

4.15 At the time of this Inquiry, a review of Irish copyright law is also taking place, to examine the ‘optimum’ copyright law for Ireland, including consideration of whether a fair use doctrine would be appropriate in the Irish/EU context.^[11]

Australian reviews

4.16 This Inquiry is not the first Australian review to consider whether the Copyright Act should recognise the fair use of copyright material,^[12] although some stakeholders consider that it has not been given ‘a sufficiently thorough examination in Australian law reform processes’ to date.^[13]

The CLRC simplification review

4.17 In 1996, the Australian Government asked the Copyright Law Review Committee (CLRC) to consider how the Copyright Act could be simplified ‘to make it able to be understood by people needing to understand their rights and obligations’.^[14] The CLRC was mindful that it did not have ‘a mandate to undertake a wholesale review of the Act or recommend significant changes to the policy underpinning the law’.^[15]

4.18 In 1998, the CLRC recommended, among other things, the consolidation of the existing fair dealing provisions into a single section and the expansion of fair dealing to an ‘open-ended model’ that would not be confined to the existing ‘closed-list’ of fair dealing purposes.^[16] The CLRC recommended that the existing non-exhaustive list of five fairness factors in s 40(2) of the Copyright Act specifically apply to all fair dealings.^[17]

4.19 The CLRC recommended the following text for the consolidated statutory provision:

(1) Subject to this section, a fair dealing with any copyright material for any purpose, including the purposes of research, study, criticism, review, reporting of news, and professional advice by a legal practitioner, patent attorney or trade mark attorney, is not an infringement of copyright.

(2) In determining whether in any particular case a dealing is a fair dealing, regard shall be had to the following:

(a) the purpose and character of the dealing;

(b) the nature of the copyright material;

(c) the possibility of obtaining the copyright material within a reasonable time at an ordinary commercial price;

(d) the effect of the dealing upon the potential market for, or value of, the copyright material;

(e) in a case where part only of the copyright material is dealt with—the amount and substantiality of the part dealt with, considered in relation to the whole of the copyright material.^[18]

4.20 The CLRC considered that its model was ‘sufficiently flexible to accommodate new uses that may emerge with future technological developments’ and that it also contained ‘enough detail to provide valuable guidance to both copyright owners and users’.^[19] This model has been described as ‘a neat and elegant one that will bring the existing multiplicity of exceptions into a coherent and orderly relationship’.^[20] The Australian Government did not formally respond to the recommendations made in this CLRC report.

4.21 The CLRC’s model is similar to that proposed by the ALRC in this Discussion Paper.

Intellectual Property and Competition Review Committee

4.22 In September 2000 the Intellectual Property and Competition Review Committee, chaired by Henry Ergas (Ergas Committee), considered the CLRC’s recommendation for expansion of the fair dealing purposes. It reported that it did ‘not believe there is a case for removing the elements of the current Copyright Act, which define certain types of conduct as coming within the definition of fair dealing’.^[21] In the context of reviewing copyright in terms of competition policy, the Ergas Committee considered that, at that time, the transaction costs of changing the Copyright Act would outweigh the benefits.^[22]

The Attorney-General’s Department’s Fair Use Review

4.23 The Australian Government Attorney-General’s Department’s Fair Use Review (AGD Fair Use Review) considered the CLRC and Ergas Committee’s respective relevant recommendations, as well as a recommendation that had been made by the Joint Standing Committee on Treaties (JSCOT) in the context of its consideration of whether the Australia-United States Free Trade Agreement (AUSFTA) would be in the national interest.

4.24 JSCOT had recommended replacing fair dealing with something closer to the US fair use doctrine ‘to counter the effects of the extension of copyright protection and to correct the legal anomaly of time shifting and space shifting’.^[23]

4.25 Submissions to the AGD Fair Use Review contained a number of arguments for and against Australia adopting such a fair use approach. As the AGD Fair Use Review observed, the main difference between a provision which is open-ended, compared with one that is closed, is that the former is more likely to provide flexibility and the latter, certainty.^[24] Views differed as to which was preferable.

4.26 A final report was not issued. However, a number of reforms were enacted in response to the Review—notably exceptions for time and format shifting and fair dealing for parody and satire.

4.27 The Australian Government did not enact a fair use exception for two reasons. First, the Government stated that, in the public consultation phase, ‘no significant interest supported fully adopting the US approach’.^[25] Secondly, it appears that the Government may have been concerned about compliance with the three-step test in international copyright law.^[26]