Summary

5.1 Should a company be free to copy and store broadcast television programs for its customers, or copy music the customer has already bought, from one device to another or to the cloud? Should a school be free to copy material for its students, or a library for its patrons, if the students or patrons would have been permitted to copy the material themselves? This chapter considers such ‘third party’ uses of copyright material, where the third party copies or otherwise uses copyright material on behalf of others. These are unlicensed uses to deliver a service, sometimes for profit, in circumstances where the same use by the ‘end-user’ would be permitted under a free-use exception.

5.2 The ALRC concludes that such uses should be considered under the fair use exception proposed in Chapter 4, in determining whether the use infringes copyright.

5.3 A use might sometimes be considered fair when a third party appears merely to be facilitating an otherwise fair use, such as some types of private and domestic use. Other factors, however, such as whether the use is transformative, for a commercial purpose, or harms the rights holder’s market, may be more important.