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ausip:copyrightdefences [2019/02/25 14:59]
jessiej_87
ausip:copyrightdefences [2019/03/10 09:08]
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 # Copyright Limitations and Exceptions ​ # Copyright Limitations and Exceptions ​
  
-The exclusive rights of copyright holders, as outlined in chapter six are extensive and wide reaching. As a result of these rights, there is a need in copyright law to ensure that a balance of interests is reached between private interests and public interests. This balance seeks to ensure creators are encouraged and provided incentives to create innovative materials, on the one hand, and the interests of users of copyright materials, on the other hand.+The exclusive rights of copyright holders, as outlined in chapter six are extensive and wide reaching. As a result of these rights, there is a need for copyright law to ensure that a balance of interests is reached between private interests and public interests. This balance seeks to ensure creators are encouraged and provided incentives to create innovative materials, on the one hand, and the interests of users of copyright materials, on the other hand.
  
 The Copyright Law Reform Committee (CLRC), Copyright and Contract (2002) states: ​ The Copyright Law Reform Committee (CLRC), Copyright and Contract (2002) states: ​
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 * Statutory licenses. * Statutory licenses.
 +
 +Each of these will be discussed below. ​
  
  
 ## Fair Dealing ## Fair Dealing
  
-The //Copyright Act 1968// (Cth) has statutory defences, situations in which use of copyright works will not amount to copyright infringement. These are known as the fair dealing provisions. A fair dealing with a Pt III work or adaptation or a Pt IV audio-visual item (that is, a sound recording, film, sound broadcast or television broadcast) does not infringe if done for one (or more) of the purposes as outlined in the table below.  ​+The //Copyright Act 1968// (Cth) has statutory defences, situations in which the use of copyright works will not amount to copyright infringement. These are known as the fair dealing provisions. A fair dealing with a Pt III work or adaptation or a Pt IV audio-visual item (that is, a sound recording, film, sound broadcast or television broadcast) does not infringe ​copyright ​if done for one (or more) of the purposes as outlined in the table below.  ​
  
 ^Defence ​ ^Subject Matter ​ ^Section of the Act|  ^Defence ​ ^Subject Matter ​ ^Section of the Act| 
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-The fair dealing provisions intend to mark out areas of free use of copyright materialsin the public interest and provide a complete defence to an infringement action. These defences are commonly referred to as exceptions but are more accurately conceptualised as establishing limits to the scope of the bundle of exclusive rights. The fair dealing provisions apply to all categories of works and subject matter and to each of the exclusive rights but are confined to the doing of acts for four specific purposes. They also permit royalty-free use of a substantial part or the whole of the work or subject matter without the authorisation of the copyright owner.+The fair dealing provisions intend to mark out areas of free use of copyright materials. These provisions are in the public interest and provide a complete defence to an infringement action. These defences are commonly referred to as exceptions but are more accurately conceptualised as establishing limits to the scope of the bundle of exclusive rights. The fair dealing provisions apply to all categories of works and subject matter and to each of the exclusive rights but are confined to the doing of acts for four specific purposes. They also permit royalty-free use of a substantial part or the whole of the work or subject matter without the authorisation of the copyright owner.
  
  
  
-**Video overview of Dan Winters on[The ​difference between fair use and fair dealing](https://youtu.be/​Ea2AGBjf_98).**+**Video overview of Dan Winters on[The ​Difference Between Fair Use and Fair Dealing](https://www.youtube.com/watch?v=Ea2AGBjf_98).**
  
  
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-"​Research"​ and “study” are not defined ​– given  dictionary meaning. "​Research"​ means “a diligent and systematic enquiry or investigation into a subject in order to discover facts or principles”. ​+"​Research"​ and “study” are not defined ​by the //Act// but are given their dictionary meaning. "​Research"​ means “a diligent and systematic enquiry or investigation into a subject in order to discover facts or principles”. ​
  
 **Video overview by Nicolas Suzor on [Research or Study](https://​www.youtube.com/​watch?​v=R5hyBW1zchY&​index=1&​list=PLa0bKPnUKQrzsxtMxKxWy_Ed2KWNs-s0u).** **Video overview by Nicolas Suzor on [Research or Study](https://​www.youtube.com/​watch?​v=R5hyBW1zchY&​index=1&​list=PLa0bKPnUKQrzsxtMxKxWy_Ed2KWNs-s0u).**
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 The leading case of //De Garis v Neville Jeffress Pidler Pty Ltd// considered the meaning of the terms "​research or study"​. The leading case of //De Garis v Neville Jeffress Pidler Pty Ltd// considered the meaning of the terms "​research or study"​.
  
-__De Garis v Neville Jeffress Pidler Pty Ltd__+__De Garis v Neville Jeffress Pidler Pty Ltd__((18 IPR 292))
  
-* Held, the respondent, a press clipping and media research bureau, who supplied photocopies of published material in return for a fee was not "​research"​ or “study” in the terms of s 40.+In the case of [De Garis v Neville Jeffress Pidler Pty Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCA/​1990/​218.html) the court found that the respondent, a press clipping and media research bureau, who supplied photocopies of published material in return for a fee was not "​research"​ or “study” in the terms of s 40.
  
-In determining whether a dealing is for the purpose of "​research or study",​ the relevant purpose is that of the person making the dealing, not the purpose to which the reproduction or adaptation is ultimately put.+In determining whether a dealing is for the purpose of "​research or study",​ the relevant purpose is that of the person making the dealing, not the purpose to which the reproduction or adaptation is ultimately put.
  
-Held, the purpose of the respondent’s press clipping service was not to conduct research, even though research may have been the purpose of its customers.+Held, the purpose of the respondent’s press clipping service was not to conduct research, even though research may have been the purpose of its customers.
  
 Several non-exclusive factors may be taken into account in determining whether a dealing for research or study purposes is fair.  ​ Several non-exclusive factors may be taken into account in determining whether a dealing for research or study purposes is fair.  ​
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 In the case of Part III works and adaptations,​ these factors apply only where the dealing is a reproduction of the whole or part of the work or adaptation, whereas for Part IV audio-visual items, the factors are relevant to the exercise of any of the exclusive rights. In the case of Part III works and adaptations,​ these factors apply only where the dealing is a reproduction of the whole or part of the work or adaptation, whereas for Part IV audio-visual items, the factors are relevant to the exercise of any of the exclusive rights.
  
-The factors are: ((ss 40(2) and 103C(2) ))+The factors are: ((//​CA// ​ss 40(2) and 103C(2) ))
  
 * the purpose and character of the dealing; * the purpose and character of the dealing;
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 * where only part of a Pt III work, adaptation or audio-visual item is reproduced or copied, the amount and substantiality of the part copied in relation to the whole item. * where only part of a Pt III work, adaptation or audio-visual item is reproduced or copied, the amount and substantiality of the part copied in relation to the whole item.
  
-The //Act// provides more specific guidelines on the reproduction of literary, dramatic and musical works and adaptations (but these do not  apply to audio-visual items):+The //Act// provides more specific guidelines on the reproduction of literary, dramatic and musical works and adaptations (but these do not apply to audio-visual items):
  
-* If the work or adaptation is an article in a periodical, it is a fair dealing for research or study to copy the whole of the article. ((s 40(3) ))+* If the work or adaptation is an article in a periodical, it is a fair dealing for research or study to copy the whole of the article. ((//​CA// ​s 40(3) ))
  
-* It is not a fair dealing to reproduce the whole or part of an article in a periodical if another article in the publication,​ dealing with a different subject matter is also reproduced. ((s 40(4) ))+* It is not a fair dealing to reproduce the whole or part of an article in a periodical if another article in the publication,​ dealing with a different subject matter is also reproduced. ((//​CA// ​s 40(4) ))
  
-In other cases, it is deemed to be a fair dealing to reproduce only a "​reasonable portion"​ of the work. ((s 40(5) )) Where a literary, dramatic or musical work (other than a computer program) is contained in a published edition of 10 pages or more, a reasonable portion is up to 10% in the aggregate of the number of pages in the edition. ((s 10(2) )) In instances where the work is divided into chapters, a reasonable portion is the whole or part of a single chapter even though it may exceed 10% of the number of pages in the edition. ((s 10(2) ))+In other cases, it is deemed to be a fair dealing to reproduce only a "​reasonable portion"​ of the work. ((//​CA// ​s 40(5) )) Where a literary, dramatic or musical work (other than a computer program) is contained in a published edition of 10 pages or more, a reasonable portion is up to 10% in the aggregate of the number of pages in the edition. ((//​CA// ​s 10(2) )) In instances where the work is divided into chapters, a reasonable portion is the whole or part of a single chapter even though it may exceed 10% of the number of pages in the edition. ((//​CA// ​s 10(2) ))
  
-Where the reproduction is of part of a published literary work (other than a computer program or an electronic compilation such as a database) or a published dramatic work in electronic form, the reproduction contains a reasonable portion of the work if the number of words copied does not exceed, in total, 10% of the number of words in the work or, if the work is divided into chapters, the reproduction contains only the whole or part of a single chapter of the work, even though the number of words copied exceeds, in total, 10% of the number of words in the work ((s 10(2A) ))+Where the reproduction is of part of a published literary work (other than a computer program or an electronic compilation such as a database) or a published dramatic work in electronic form, the reproduction contains a reasonable portion of the work if the number of words copied does not exceed, in total, 10% of the number of words in the work or, if the work is divided into chapters, the reproduction contains only the whole or part of a single chapter of the work, even though the number of words copied exceeds, in total, 10% of the number of words in the work ((//​CA// ​s 10(2A) ))
  
 **Note**: These are deemed to be fair dealings, but are not exhaustive. It might be fair to reproduce quantitatively more in all the circumstances. **Note**: These are deemed to be fair dealings, but are not exhaustive. It might be fair to reproduce quantitatively more in all the circumstances.
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 ### Criticism or Review ### Criticism or Review
  
-The fair dealing provision for criticism or review applies only if sufficient acknowledgment is made. ((ss 41 and 103A)) For an acknowledgment to be sufficient, it must identify the work or audio-visual item by its title or other description,​ as well as the author. ((s 10(1) )) +The fair dealing provision for criticism or review applies only if sufficient acknowledgment is made. ((//​CA// ​ss 41 and 103A)) For an acknowledgment to be sufficient, it must identify the work or audio-visual item by its title or other description,​ as well as the author. ((//​CA// ​s 10(1) )) 
  
-The term "​sufficient acknowledgement"​ is defined as: ((s 10))+The term "​sufficient acknowledgement"​ is defined as: ((//​CA// ​s 10))
  
 >" an acknowledgement identifying the work by its title or other description and, unless the work is anonymous or pseudonymous or the author has previously agreed or directed that an acknowledgement of his her her name is not to be made, also identifying the authors"​.  ​ >" an acknowledgement identifying the work by its title or other description and, unless the work is anonymous or pseudonymous or the author has previously agreed or directed that an acknowledgement of his her her name is not to be made, also identifying the authors"​.  ​
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 In the case of //De Garis v Neville Jeffress Pidler Pty Ltd// at 299-300, Beaumont J referred to the Macquarie Dictionary definitions of "​criticism"​ and “review”:​ In the case of //De Garis v Neville Jeffress Pidler Pty Ltd// at 299-300, Beaumont J referred to the Macquarie Dictionary definitions of "​criticism"​ and “review”:​
  
-* "​criticism"​ is used in the sense of “the act or art of analyzing ​and judging the quality of a literary or artistic work; the act of passing judgment as to the merits of something; [and] a critical comment, article, or essay, a critique”;​ “review” is used in the sense of  “a critical article or report, as in a periodical, on some literary work, commonly some work of recent appearance; a critique”.+* "​criticism"​ is used in the sense of “the act or art of analysing ​and judging the quality of a literary or artistic work; the act of passing judgment as to the merits of something; [and] a critical comment, article, or essay, a critique”;​ “review” is used in the sense of “a critical article or report, as in a periodical, on some literary work, commonly some work of recent appearance; a critique”.
  
 * "​criticism"​ includes all kinds of criticism – it is not restricted to literary criticism - “review” is cognate with the word “criticism”;​ one is the process, the other is the result of the critical application of the mental faculties. * "​criticism"​ includes all kinds of criticism – it is not restricted to literary criticism - “review” is cognate with the word “criticism”;​ one is the process, the other is the result of the critical application of the mental faculties.
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 __TCN Channel Nine Pty Ltd v Network Ten Ltd [2001] FCA 108__ __TCN Channel Nine Pty Ltd v Network Ten Ltd [2001] FCA 108__
  
-* Conti J at [66]:+In the case of [TCN Channel Nine Pty Ltd v Network Ten Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCA/​2001/​108.html) Justice Conti noted that:
  
-    * "​Criticism"​ and “review” are words of “wide and indefinite scope which should be interpreted liberally” and extend to “the thoughts underlying the expression of copyright works or subject matter”.+"​Criticism"​ and “review” are words of “wide and indefinite scope which should be interpreted liberally” and extend to “the thoughts underlying the expression of copyright works or subject matter”. 
 +They involve the passing of judgment and may be strongly expressed but, provided they are genuine and not a pretence for some other purpose, need not be balanced. [66]
  
-    * They involve the passing of judgment and may be strongly expressed but, provided they are genuine and not a pretence for some other purpose, need not be balanced. 
  
 __TCN Channel Nine Pty Ltd v Network Ten Ltd (2002) 55 IPR 112__ __TCN Channel Nine Pty Ltd v Network Ten Ltd (2002) 55 IPR 112__
  
-Hely (Sundberg and Finkelstein JJ agreeing) at [115] said the test is:+In the Full Court'​s decision of [TCN Channel Nine Pty Ltd v Network Ten Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCAFC/​2002/​146.html) Justice ​Hely (Sundberg and Finkelstein JJ agreeing) at [115] said the test is:
  
-    * "[I]s the program incorporating the infringing material a genuine piece of criticism or review, or is it something else, such as an attempt to dress up the infringement of another’s copyright in the guise of criticism, and so profit unfairly from another’s work? As Lord Denning said in Hubbard v Vosper [1972] 2 QB 84 at 93, ‘it is not fair dealing for a rival in the trade to take copyright material and use it for its own  benefit’."+"[I]s the program incorporating the infringing material a genuine piece of criticism or review, or is it something else, such as an attempt to dress up the infringement of another’s copyright in the guise of criticism, and so profit unfairly from another’s work? As Lord Denning said in Hubbard v Vosper [1972] 2 QB 84 at 93, ‘it is not fair dealing for a rival in the trade to take copyright material and use it for its own  benefit’"​.
  
 ### Reporting of the News ### Reporting of the News
  
-Copyright in a Pt III work or adaptation or a Pt IV audio-visual item is not infringed if it is dealt with for the purpose of, or associated with, the reporting of news in the following:​((ss 42 and 103B))+Copyright in a Pt III work or adaptation or a Pt IV audio-visual item is not infringed if it is dealt with for the purpose of, or associated with, the reporting of news in the following:​((//​CA// ​ss 42 and 103B))
  
 * in a newspaper, magazine or periodical, provided sufficient ​ acknowledgement is made of the work or audio-visual item; * in a newspaper, magazine or periodical, provided sufficient ​ acknowledgement is made of the work or audio-visual item;
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 * in a cinematograph film. * in a cinematograph film.
  
-This section pertains to music incidentally recorded in the course of reporting news by means of broadcast or film, but does not extend to music added to the soundtrack which does not form part of the news being reported ((s 42(2) ))+This section pertains to music incidentally recorded in the course of reporting news by means of broadcast or film, but does not extend to music added to the soundtrack which does not form part of the news being reported ((//​CA// ​s 42(2) ))
  
 The fact that news coverage is interesting or may even be entertaining does not negate the fact that it is news, even though it may sometimes be difficult to draw a distinction between news and entertainment. The fact that news coverage is interesting or may even be entertaining does not negate the fact that it is news, even though it may sometimes be difficult to draw a distinction between news and entertainment.
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 ### Disability Access ### Disability Access
  
-In December 2017 Australia'​s copyright laws were amended to reflect our international obligations under the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. ​+In December 2017 Australia'​s copyright laws were amended to reflect our international obligations under the [Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled](https://​www.wipo.int/​publications/​en/​details.jsp?​id=382&​plang=EN)
  
-The new disability access provisions ensure more equitable access to copyright material. The new provisions consist of two free exceptions: fair dealing for access by persons with a disability, and use of copyright material by organisations assisting persons with a disability. ((ss 113E and 113F the //Copyright Act 1968// (Cth))+The new disability access provisions ensure more equitable access to copyright material. The new provisions consist of two free exceptions: fair dealing for access by persons with a disability, and use of copyright material by organisations assisting persons with a disability. ((//CA// ss 113E and 113F))
  
 For more information on the changes to Australia'​s Disability Access see[QUT'​s Copyright Guide](https://​www.library.qut.edu.au/​copyrightguide/​documents/​2017Amendments_Disability_provisions_20171206.pdf). For more information on the changes to Australia'​s Disability Access see[QUT'​s Copyright Guide](https://​www.library.qut.edu.au/​copyrightguide/​documents/​2017Amendments_Disability_provisions_20171206.pdf).
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 ### Professional Legal Advice ### Professional Legal Advice
  
-The //Act// provides that it is not an infringement to make a fair dealing with a Part III work for the purposes of giving of professional advice by a legal practitioner,​ a registered patent attorney or a registered trade mark attorney. ((s 43(2) ))+The //Act// provides that it is not an infringement to make a fair dealing with a Part III work for the purposes of giving of professional advice by a legal practitioner,​ a registered patent attorney or a registered trade mark attorney. ((//​CA// ​s 43(2) ))
  
 There is no fair dealing counterpart in relation to the use of audio-visual items for these purposes. There is no fair dealing counterpart in relation to the use of audio-visual items for these purposes.
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 ### Judicial Proceedings ### Judicial Proceedings
  
-The //Act// provides that any act done in relation to a literary, dramatic, musical or artistic work for the purpose of a judicial proceeding or the report of a judicial proceeding is exempted from copyright infringement. ((s 43(1) )) A general exception from infringement of copyright in sound recordings, films, broadcasts and published editions applies for acts done in the course of judicial proceedings or the reporting of such proceedings ((s 104(a) )) or in the course of obtaining professional advice from a lawyer, patent attorney or trade marks attorney. ((s 104(b) and (c) ))+The //Act// provides that any act done in relation to a literary, dramatic, musical or artistic work for the purpose of a judicial proceeding or the report of a judicial proceeding is exempted from copyright infringement. ((//​CA// ​s 43(1) )) A general exception from infringement of copyright in sound recordings, films, broadcasts and published editions applies for acts done in the course of judicial proceedings or the reporting of such proceedings ((//​CA// ​s 104(a) )) or in the course of obtaining professional advice from a lawyer, patent attorney or trade marks attorney. ((//​CA// ​s 104(b) and (c) ))
  
 ### Parody or Satire ### Parody or Satire
  
-The new provisions of the //Copyright ​Act// apply where a person or organisation can demonstrate that their use of copyright material (both works and audio-visual subject matter) is a fair dealing for parody or satire. ((ss 41A and 103AA)) The //Act// does not include a definition of ‘parody’ or ‘satire’ or require sufficient acknowledgment of the work to be made.+The provisions of the //Act// apply where a person or organisation can demonstrate that their use of copyright material (both works and audio-visual subject matter) is a fair dealing for parody or satire. ((//​CA// ​ss 41A and 103AA)) The //Act// does not include a definition of ‘parody’ or ‘satire’ or require sufficient acknowledgment of the work to be made.
  
 Defences relating to parody can be found in other jurisdictions,​ including the US and member countries of the European Union. The defence for satire may be unprecedented. Defences relating to parody can be found in other jurisdictions,​ including the US and member countries of the European Union. The defence for satire may be unprecedented.
  
-The case of //TCN Channel Nine Pty Ltd v Network Ten Ltd// (//Panel case//​)((TCN Channel Nine Pty Ltd v Network Ten Ltd [2001] FCA 108; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273)) involved parody and satire ​but was over before ​the defence was introduced. Whether this defence would have made a different is a point of debate.+The case of //TCN Channel Nine Pty Ltd v Network Ten Ltd// (//Panel case//​)((TCN Channel Nine Pty Ltd v Network Ten Ltd [2001] FCA 108; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273)) involved parody and satire, however, the case was finalised ​before defence was introduced ​in Australian law. Whether this defence would have made a different is a point of debate.
  
 Historically parody and satire has been accommodated within copyright law to some degree by: Historically parody and satire has been accommodated within copyright law to some degree by:
  
-"​substantial part": *Joy Music v Sunday Pictorial Newspapers*;​ (([1960] 1 All ER 703)) *AGL Sydney v Shortland County Council*; (( (1989) 17 IPR 99)) *TCN Channel Nine Pty Ltd v Network Ten*. (( (2001) 108 FCR 235))+"​substantial part": *Joy Music v Sunday Pictorial Newspapers*;​ (([1960] 1 All ER 703)) *AGL Sydney v Shortland County Council*; (( (1989) 17 IPR 99)) *TCN Channel Nine Pty Ltd v Network Ten*. (( (2001) 108 FCR 235))
  
-* fair dealing for the purposes of criticism or review:+  ​* fair dealing for the purposes of criticism or review:
  
         * *TCN Channel Nine Pty Ltd v Network Ten Ltd* (( (2001) 108 FCR 235 at [66] per Conti J))         * *TCN Channel Nine Pty Ltd v Network Ten Ltd* (( (2001) 108 FCR 235 at [66] per Conti J))
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         * *TCN Channel Nine Pty Ltd v Network Ten Ltd* (( (2002) 118 FCR 417 Hely J (Sundberg and Finkelstein JJ agreeing) at [115] ))         * *TCN Channel Nine Pty Ltd v Network Ten Ltd* (( (2002) 118 FCR 417 Hely J (Sundberg and Finkelstein JJ agreeing) at [115] ))
  
-* fair dealing for the purposes of reporting the news:+  ​* fair dealing for the purposes of reporting the news:
  
         * *Beloff v Pressdram* (([1973] 1 All ER 241))         * *Beloff v Pressdram* (([1973] 1 All ER 241))
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-What is the likely scope of the new exception?+**What is the likely scope of the parody and satire ​exception?**
  
 The US courts, in interpreting fair use, have traditionally made a distinction between parody and satire: Parody involves some degree of criticism on the subject-matter or author; whereas satire is more directed towards an unrelated target or society at large. The US courts, in interpreting fair use, have traditionally made a distinction between parody and satire: Parody involves some degree of criticism on the subject-matter or author; whereas satire is more directed towards an unrelated target or society at large.
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 * Used the familiar first line and opening melody, but changed all the rest of the lyrics (referring variously to ‘pretty woman’, ‘big hairy woman’, ‘bald headed woman’, ‘two-timing woman’) * Used the familiar first line and opening melody, but changed all the rest of the lyrics (referring variously to ‘pretty woman’, ‘big hairy woman’, ‘bald headed woman’, ‘two-timing woman’)
 * 2 Live Crew asked for a licence but were refused. They continued with the parody anyway. * 2 Live Crew asked for a licence but were refused. They continued with the parody anyway.
-* Even though 2 Live Crew took the ‘heart’ of ‘Pretty Woman’, "that heart is what most readily conjures up the song for parody, and it is the heart at which parody takes aim."+* Even though 2 Live Crew took the ‘heart’ of ‘Pretty Woman’, "that heart is what most readily conjures up the song for parody, and it is the heart at which parody takes aim".
 * The new version was a transformative use – markedly different from the original and not substitutable in the market. * The new version was a transformative use – markedly different from the original and not substitutable in the market.
  
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 * An author created a book with the lead character modelled after Holden Caulfield from J.D. Salinger’s Catcher in the Rye. The new character was aged and placed in modern day New York. * An author created a book with the lead character modelled after Holden Caulfield from J.D. Salinger’s Catcher in the Rye. The new character was aged and placed in modern day New York.
  
-* The Court held that the use was not fair, as aging the character and placing him in new settings was not particularly transformative,​ particularly as the character’s personality was largely unchanged.+* The Court held that the use was not fair use, as ageing ​the character and placing him in new settings was not particularly transformative,​ particularly as the character’s personality was largely unchanged.
  
 ## Specific, Royalty Free Exceptions ## Specific, Royalty Free Exceptions
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 ### Private Copying: Time Shifting ### Private Copying: Time Shifting
  
-There is an exception for the purpose of time shifting found in the //Act//.((s 111))+There is an exception for the purpose of time shifting found in the //Act//.((//​CA// ​s 111))
    
-If a person makes a cinematograph film or sound recording of a broadcast solely for private and domestic use by watching or listening to the material broadcast at a time more convenient than the time when the broadcast is made then the making of the film or recording does not infringe copyright in the broadcast or in any work or other subject matter included in the broadcast.+If a person makes a cinematograph film or sound recording of a broadcast solely for private and domestic use by watching or listening to the material broadcast at a time more convenient than the time when the broadcast is madethen the making of the film or recording does not infringe copyright in the broadcast or in any work or other subject matter included in the broadcast.
  
 This exception will not apply if an article or thing embodying the film or recording is: This exception will not apply if an article or thing embodying the film or recording is:
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 * used for broadcasting the film or recording. * used for broadcasting the film or recording.
  
-**Video overview by Jennifer Singleton on[Time Shifting](https://​youtu.be/​PwzsIb9SF68).**+**Video overview by Jennifer Singleton on[Time Shifting](https://​www.youtube.com/watch?v=PwzsIb9SF68).**
  
 __National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd [2012] FCAFC 59__ __National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd [2012] FCAFC 59__
  
-Optus provided a "TV Now" subscription service whereby it copied and stored a television broadcast selected by a subscriberafter subscriber clicked the “record” button on the subscriber’s Optus compatible device, to be played back at other times (“time-shifting”) with minimum delay of 2 minutes.+In the case of [National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCAFC/​2012/​59.html) ​Optus provided a "TV Now" subscription service whereby it copied and stored a television broadcast selected by a subscriber after subscriber clicked the “record” button on the subscriber’s Optus compatible device, to be played back at other times (“time-shifting”) with minimum delay of 2 minutes.
  
-Issue: Television broadcast copied = film + sound recording made: then who is the maker of the recording?+Issue: Television broadcast copied = film + sound recording made: then who is the maker of the recording?
  
-* Held: The maker was either Optus or both Optus and the subscriber+It was held that the maker was either Optus or both Optus and the subscriber.
  
-"we consider that Optus’ role in the making of a copy – ie in capturing the broadcast and then in embodying its images and sounds in the hard disk – is so pervasive that, even though entirely automated, it cannot be disregarded when the “person"​ who does the act of copying is to be identified.” [67]+>"we consider that Optus’ role in the making of a copy – ie in capturing the broadcast and then in embodying its images and sounds in the hard disk – is so pervasive that, even though entirely automated, it cannot be disregarded when the “person"​ who does the act of copying is to be identified”[67]
  
-* "Put shortly Optus is not merely making available its system to another who uses it to copy a broadcast… Rather it captures, copies, stores and makes available for reward, a programme for later viewing by another"​ [68]+The Court said: 
  
-* Optus cannot rely on the "private and domestic use" defence of s111: "​There ​is nothing in the language, or the provenance, of s111 to suggest that it was intended ​to cover commercial copying on behalf of individuals." [89]+>"Put shortly Optus is not merely making available its system ​to another who uses it to copy a broadcast… Rather it captures, copies, stores and makes available for reward, a programme for later viewing by another"[68]
  
 +Optus cannot rely on the "​private and domestic use" defence of s111: "There is nothing in the language, or the provenance, of s111 to suggest that it was intended to cover commercial copying on behalf of individuals"​. [89]
  
-**Video overview by Stuart Efstathis on[Optus TV Now](https://​youtu.be/​oQS8oKKwimA).**+ 
 +**Video overview by Stuart Efstathis on[Optus TV Now](https://​www.youtube.com/watch?v=oQS8oKKwimA).**
  
 ### Private Copying: Format Shifting ### Private Copying: Format Shifting
  
-In addition to allowing private users of copyright to make recordings (as discussed above in time shifting), there is also a provision which allows private users to format shift. Format shifting involves reproducing copyright content in a different format without attracting copyright infringement. An example of this would be reproducing a copy of a CD onto iPod or other listening device. ​  +In addition to allowing private users of copyright to make recordings (as discussed above in time shifting), there is also a provision which allows private users to format shift. Format shifting involves reproducing copyright content in a different format without attracting copyright infringement. An example of this would be reproducing a copy of a CD onto an iPod or other listening device. ​  
  
  
-**Video overview by Lindsay Mengel on[Format Shifting](https://​youtu.be/​6HUG9PIokvY).**+**Video overview by Lindsay Mengel on[Format Shifting](https://​www.youtube.com/watch?v=6HUG9PIokvY).**
  
-**Video overview by Lachlan McCormick on[Format Shifting](https://​youtu.be/​VTpMtSzNjC8).**+**Video overview by Lachlan McCormick on[Format Shifting](https://​www.youtube.com/watch?v=VTpMtSzNjC8).**
  
  
  
-#### Books, Newspapers and Periodicals ​+**Books, Newspapers and Periodicals** 
  
-The //Act// also allows for books, newspapers or periodicals that are in a private collections to be reproduced into another format (eg. scanning an article from a magazine onto your personal computer to keep as a reference). ((s 43C))+The //Act// also allows for books, newspapers or periodicals that are in a private collections to be reproduced into another format (eg. scanning an article from a magazine onto your personal computer to keep as a reference). ((//​CA// ​s 43C))
  
-#### Photographs+**Photographs**
  
-The //Act// also permits photographs to be reproduced in instances where the copy owed is in hardcopy form and the user is seeking to format shift this into an electronic form (for example by scanning into a computer). This section also applies where the copy owned is in electronic form and the user is seeking to format shift this into a hardcopy form (for example by printing a digital file). ((s 47J))+The //Act// also permits photographs to be reproduced in instances where the copy owed is in hardcopy form and the user is seeking to format shift this into an electronic form (for example by scanning into a computer). This section also applies where the copy owned is in electronic form and the user is seeking to format shift this into a hardcopy form (for example by printing a digital file). ((//​CA// ​s 47J))
  
-#### Videotapes+**Videotapes**
  
-The //Act// permits the reproduction of video cassettes that are owned, into an electronic form (for example reproducing a video cassette onto a DVD). ((s 110AA))+The //Act// permits the reproduction of video cassettes that are owned, into an electronic form (for example reproducing a video cassette onto a DVD). ((//​CA// ​s 110AA))
  
-#### Backups of Computer Programs+**Backups of Computer Programs**
  
-The //Act// provides limited backup rights for software. The rights only extends to literary works – copying computer games is not allowed. ((s 47C))+The //Act// provides limited backup rights for software. The rights only extends to literary works – copying computer games is not allowed. ((//​CA// ​s 47C))
  
-The limits to the new exceptions are:+The limits to the exceptions are:
  
   * The original copy you own must be a legitimate copy.   * The original copy you own must be a legitimate copy.
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 ### Private Copying: Music ### Private Copying: Music
  
-Private copies of music are permitted to be made only if:((s 109))+Private copies of music are permitted to be made only if:((//​CA// ​s 109))
  
 * the owner of a copy (the earlier copy ) of a sound recording makes another copy (the later copy ) of the sound recording using the earlier copy; and * the owner of a copy (the earlier copy ) of a sound recording makes another copy (the later copy ) of the sound recording using the earlier copy; and
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 ### Computer Software ### Computer Software
  
-TheCopyright Amendment (Computer Programs) Act 1999*, introduced a new Division 4A into Part III of the //Copyright Act 1968// –  "​Acts ​ not constituting infringements of copyright in computer programs"​.  ​+The //Copyright Amendment (Computer Programs) Act 1999//, introduced a new Division 4A into Part III of the //Copyright Act 1968// –  "​Acts ​ not constituting infringements of copyright in computer programs"​.  ​
  
  
 The owner or licensee of a computer program does not infringe copyright by making a reproduction of the program: The owner or licensee of a computer program does not infringe copyright by making a reproduction of the program:
  
-* in the course of running the program for the purposes for which the program was designed, unless contrary to an express direction or license. ((s 47B(1) and (2) ))+* in the course of running the program for the purposes for which the program was designed, unless contrary to an express direction or license. ((//​CA// ​s 47B(1) and (2) ))
  
-* in the course of running the program for the purpose of studying the ideas behind the program and the way it functions ((s 47B(3) ))+* in the course of running the program for the purpose of studying the ideas behind the program and the way it functions((//​CA// ​s 47B(3) ))
  
-* for use in lieu of the original copy, or if the original copy is lost, destroyed or becomes unusable. ((s 47C))+* for use in lieu of the original copy, or if the original copy is lost, destroyed or becomes unusable. ((//​CA// ​s 47C))
  
-* to obtain information necessary to make independently another program or article to interoperate with the original program any other program, but only to the extent that it is reasonably necessary to obtain such information and to achieve such interoperability;​ and the information was not readily available to the owner or licensee.((s 47D))+* to obtain information necessary to make independently another program or article to interoperate with the original program any other program, but only to the extent that it is reasonably necessary to obtain such information and to achieve such interoperability;​ and the information was not readily available to the owner or licensee.((//​CA// ​s 47D))
  
-* for the purpose of correcting an error in the original copy which prevents the program from operating as intended by the author. ((s 47E))+* for the purpose of correcting an error in the original copy which prevents the program from operating as intended by the author. ((//​CA// ​s 47E))
  
-* for the purpose of testing the security of the original copy or network or system of which the original copy is part. ((s 47F))+* for the purpose of testing the security of the original copy or network or system of which the original copy is part. ((//​CA// ​s 47F))
  
-* Note that** most** of these exceptions are not excludable by contract. ((s 47H))+* Note that** most** of these exceptions are not excludable by contract. ((//​CA// ​s 47H))
  
 ### Other Specific, Royalty Free Exceptions ### Other Specific, Royalty Free Exceptions
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 Other specific, royalty-free exceptions include: Other specific, royalty-free exceptions include:
  
-The performance of a literary, dramatic or musical work or playing a sound recording or film in a school classroom will not infringe copyright. ((s 28)) Similarly, the public performance of a literary, dramatic or musical work or an adaptation of such a work, by the use of reception equipment or a record, at a "​premises where people reside or sleep, as part of the amenities provided exclusively for residents or inmates of the premises or for those residents or inmates and their guests"​ will not be infringing. ((s 46 – see also s 106(1) in respect of sound recordings) ))+The performance of a literary, dramatic or musical work or playing a sound recording or film in a school classroom will not infringe copyright. ((//​CA// ​s 28)) Similarly, the public performance of a literary, dramatic or musical work or an adaptation of such a work, by the use of reception equipment or a record, at a "​premises where people reside or sleep, as part of the amenities provided exclusively for residents or inmates of the premises or for those residents or inmates and their guests"​ will not be infringing. ((//​CA// ​s 46 – see also s 106(1) in respect of sound recordings) ))
  
-It is not an infringement to photograph, paint, draw, film or include in a television broadcast a building, a model of a building, a sculpture or a work of artistic craftsmanship which is permanently displayed in a public place or in premises open to the public. ((ss 65 and 66))+It is not an infringement to photograph, paint, draw, film or include in a television broadcast a building, a model of a building, a sculpture or a work of artistic craftsmanship which is permanently displayed in a public place or in premises open to the public. ((//​CA// ​ss 65 and 66))
  
-Copyright in an artistic work is not infringed if the work is included in a film or television broadcast, incidentally to the principal matters represented in the film or broadcast. ((s 67)) It is also not an infringement to read or recite in public or to include in a sound or television broadcast of a reading or recitation, a reasonable length extract from a published literary or dramatic work or an adaptation of such a work, as long as the work is given sufficient acknowledgement. ((s 45))+Copyright in an artistic work is not infringed if the work is included in a film or television broadcast, incidentally to the principal matters represented in the film or broadcast. ((//​CA// ​s 67)) It is also not an infringement to read or recite in public or to include in a sound or television broadcast of a reading or recitation, a reasonable length extract from a published literary or dramatic work or an adaptation of such a work, as long as the work is given sufficient acknowledgement. ((//​CA// ​s 45))
  
-Copyright in an artistic work is not infringed by the creator of that work if he or she makes a later artistic work which does not repeat or imitate the main design of the earlier work. ((s 72))+Copyright in an artistic work is not infringed by the creator of that work if he or she makes a later artistic work which does not repeat or imitate the main design of the earlier work. ((//​CA// ​s 72))
  
-Where there is copyright in a building, copyright is not infringed by reconstructing it. ((s 73))+Where there is copyright in a building, copyright is not infringed by reconstructing it. ((//​CA// ​s 73))
  
 ## Statutory Licenses ## Statutory Licenses
  
-As noted in Chapter seven, the //Copyright Act// has a statutory license which regulate ​the copyright material used by educational institutions,​ "for the services of the State"​.+As noted in Chapter seven, the //Copyright Act// has a statutory license which regulates ​the copyright material used by educational institutions,​ "for the services of the State"​.
  
 The statutory licence which took effect on 22 December 2017, provides greater flexibility over what can be negotiated and agreed with Copyright Agency and Screenrights in relation to copying and communications. This includes the copying and communication limits for works. The statutory licence which took effect on 22 December 2017, provides greater flexibility over what can be negotiated and agreed with Copyright Agency and Screenrights in relation to copying and communications. This includes the copying and communication limits for works.
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 The license pertains to: The license pertains to:
  
- * the re-recording of musical works, as long as the subsequent recording does not debase the work; ((s 55)) + * the re-recording of musical works, as long as the subsequent recording does not debase the work; ((//​CA// ​s 55)) 
- * the making of sound broadcasts of literary and dramatic works by the holders of a print disability radio licence; ((s 47A))+ * the making of sound broadcasts of literary and dramatic works by the holders of a print disability radio licence; ((//​CA// ​s 47A))
  * recording of musical and literary works; ((Part III, Div 6))  * recording of musical and literary works; ((Part III, Div 6))
  * retransmissions of free-to-air broadcasts; ((Part VC)) and  * retransmissions of free-to-air broadcasts; ((Part VC)) and
- * public performance and broadcasting of sound recordings. ((ss 108(1) and 109(1) ))+ * public performance and broadcasting of sound recordings. ((//​CA// ​ss 108(1) and 109(1) ))
  
  
-**Video overview by Kate van der Heyden on[Statutory Licences in Copyright](youtube>FWifaH4iPvU?​small)**+**Video overview by Kate van der Heyden on[Statutory Licences in Copyright](https://​www.youtube.com/​watch?​v=FWifaH4iPvU?​small)**
  
 **Note this video does not include the updated new statutory licence.** **Note this video does not include the updated new statutory licence.**
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 There are ongoing issues within Australia regarding the available defences and exceptions under the //Copyright Act//​. ​ Particularly,​ a number of review bodies, the Australian Law Reform Commission (ALRC) and the Australian Government Productivity Commission (PC),  have recommended that Australia adopt a fair use provision modelled off the US doctrine of fair use to replace our current fair dealing provisions. (( Australian Law Reform Commission, Copyright and the Digital Economy, Final Report Mo. 122 (2014); The Australian Government Productivity Commission, Intellectual Property Arrangements,​ Final Report (2016) ))  There are ongoing issues within Australia regarding the available defences and exceptions under the //Copyright Act//​. ​ Particularly,​ a number of review bodies, the Australian Law Reform Commission (ALRC) and the Australian Government Productivity Commission (PC),  have recommended that Australia adopt a fair use provision modelled off the US doctrine of fair use to replace our current fair dealing provisions. (( Australian Law Reform Commission, Copyright and the Digital Economy, Final Report Mo. 122 (2014); The Australian Government Productivity Commission, Intellectual Property Arrangements,​ Final Report (2016) )) 
  
-**Video overview by Nicolas Suzor on [reform ​for Australian Copyright ​defences ​and exceptions](https://​www.youtube.com/​watch?​v=Y7KIgHNkr6w&​list=PLa0bKPnUKQrzsxtMxKxWy_Ed2KWNs-s0u&​index=3).**  ​+**Video overview by Nicolas Suzor on [Reform ​for Australian Copyright ​Defences ​and Exceptions](https://​www.youtube.com/​watch?​v=Y7KIgHNkr6w&​list=PLa0bKPnUKQrzsxtMxKxWy_Ed2KWNs-s0u&​index=3).**  ​
  
-The central feature of the recommendations made by the ALRC and the Productivity Commission ​was to replace the purpose specific copyright infringement exceptions (the fair dealing provisions) with a general open ended fair use test. +The central feature of the recommendations made by the ALRC and the PC was to replace the purpose specific copyright infringement exceptions (the fair dealing provisions) with a general open ended fair use test. 
  
 In the US, the fair use exception is based on an assessment of four separate factors: In the US, the fair use exception is based on an assessment of four separate factors:
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 The four fairness factors enables users of copyright to effectively use works (depending on the purpose, nature, amount and effect on the market) without having to obtain a licence for such use. This allows users to make an argument as to why they should be able to use the material freely. ​ The four fairness factors enables users of copyright to effectively use works (depending on the purpose, nature, amount and effect on the market) without having to obtain a licence for such use. This allows users to make an argument as to why they should be able to use the material freely. ​
  
-The main argument supporting the recommendation to adopt a fair use based exception is the benefits derived from using a tied and tested system such as the doctrine of fair use as opposed to applying the current complex fair dealing exceptions ​currently ​found in Australian law. +The main argument supporting the recommendation to adopt a fair use based exception is the benefits derived from using a tried and tested system such as the doctrine of fair use as opposed to applying the current complex fair dealing exceptions found in Australian law. 
  
 Both the ALRC and the PC proposed that the fair use exception was advantageous as it is technologically neutral, promotes the public interest in transformative uses of works and provides breathing room for innovation. It was also proposed that a fair use provision would better align with social norms and consumer expectations. According to recent research into use practices of creatives, "the rules of fair dealing are confusing ... with many creators ... believ[ing] Australia already has fair use". ((Pappalardo,​ Kylie, Aufderheide,​ Patricia, Stevens, Jessica, & Suzor, Nicolas (2017) Imagination foregone: A qualitative study of the reuse practices of Australian creators)) Both the ALRC and the PC proposed that the fair use exception was advantageous as it is technologically neutral, promotes the public interest in transformative uses of works and provides breathing room for innovation. It was also proposed that a fair use provision would better align with social norms and consumer expectations. According to recent research into use practices of creatives, "the rules of fair dealing are confusing ... with many creators ... believ[ing] Australia already has fair use". ((Pappalardo,​ Kylie, Aufderheide,​ Patricia, Stevens, Jessica, & Suzor, Nicolas (2017) Imagination foregone: A qualitative study of the reuse practices of Australian creators))
  
-The fair dealing exceptions are a complex set of specific, royalty free exceptions for copyright infringement. A lot of these come under exceptions for private copying and format shifting for example. This system creates ​quite a complex //Copyright ​Act//. The US approach to fair use simplifies these tests and leaves it open to the courts to come up with jurisprudence for when uses will be considered to be fair. Whilst there are some concerns that a judicial based approach (such as the one in the US) may be more unpredictable,​ empirical evidence suggests that this claim is unfounded. +The fair dealing exceptions are a complex set of specific, royalty free exceptions for copyright infringement. A lot of these come under exceptions for private copying and format shifting for example. This system creates a complex //Act//. The US approach to fair use simplifies these tests and leaves it open to the courts to come up with jurisprudence for when uses will be considered to be fair. Whilst there are some concerns that a judicial based approach (such as the one in the US) may be more unpredictable,​ empirical evidence suggests that this claim is unfounded. ​((See P Samuelson'​Unbundling Fair Uses' 2009 77 Fordham Law Review 2537)) ​
- +
-A key issue with Australia’s current fair dealing exceptions is its inability to recognise and account for transformative uses of copyright law.  A transformative use exception allows for a more technological neutral Act. For examplethe //Copyright Act// includes provisions that enable time shifting and format shifting of particular works, however the language used in these provisions is specific about the technologies that are used. Because our law is always drafted in retrospect, it can take quite a long time to adapt to new uses. +
  
-The debate around ​fair use really centres on core issues ​of flexibility,​ simplicity, and future-proofing Australian ​law, however opponents of fair use worry that now is not the time to weaken copyright. They worry that copyright owners need to have as strong rights as possible to control the uses of their works and that any weakening ​of the right might undercut their incentives and the revenues they can receive from selling access to particular works. There’s a different view of how innovation and creativity occurs which underpins a lot of these debatesOn one handthe copyright owners will argue that they will have incentives ​to create these new types of accessing and distributive works if we strengthen the copyright monopoly efficiently +A key issue with Australia’s current ​fair dealing exceptions is its inability to recognise and account for transformative uses of copyright ​law.  A transformative use exception allows for a more technological neutral law. For examplethe //Copyright Act// includes provisions ​that enable ​time shifting ​and format shifting ​of particular works, however the language used in these provisions is specific about the technologies that are usedBecause our law is always drafted in retrospectit can take quite a long time to adapt to new uses
  
-The debate around fair use really centres on core issues of flexibility,​ simplicity, and future-proofing Australian law, however opponents of fair use worry that now is not the time to weaken copyright. They worry that copyright owners need to have as strong ​rights ​as possible ​to control the uses of their works and that any weakening of the right might undercut their incentives and the revenues they can receive from selling access to particular works. There’s a different view of how innovation and creativity occurs which underpins a lot of these debates. On one hand, the copyright owners will argue that they will have incentives ​to create ​these new types of accessing and distributive ​works if we strengthen ​the copyright monopoly efficiently+The debate around fair use really centres on core issues of flexibility,​ simplicity, and future-proofing Australian law, howeveropponents of fair use worry that now is not the time to weaken copyright. They worry that copyright owners need to have stronger ​rights to control the uses of their works and that any weakening of the right might undercut their incentives and the revenues they can receive from selling access to particular works. There’s a different view of how innovation and creativity occurs which underpins a lot of these debates. On one hand creators need to protect their work and argue that the incentive ​to create new works is based on the premise their work is protected.
  
-There is also a strong social justice component to copyright law which exists in these copyright debates. The ability to access and reuse existing culture and knowledge is central to creation and innovation. This argument focuses on an individuals ability to speak and to express themselves and the ability of people to access knowledge. The idea that consumers of information need to be able to exercise their rights to access information underpins the social justice component of copyright law. Fair use provides a fundamental part of the copyright balance by drawing the limitations around what copyright owners can control. This is particularly important in the digital age because nearly everything with copyright material becomes a potential infringement. ​+On the other hand, there is a strong social justice component to copyright law. The ability to access and reuse existing culture and knowledge is central to creation and innovation. This argument focuses on an individuals ability to speak and to express themselves and the ability of people to access knowledge. The idea that consumers of information need to be able to exercise their rights to access information underpins the social justice component of copyright law. Fair use provides a fundamental part of the copyright balance by drawing the limitations around what copyright owners can control. This is particularly important in the digital age because nearly everything with copyright material becomes a potential infringement. ​
  
-In the analogue world, it was never an infringement to read a book or to share a book with a friend. These were in the analogue world, important limits to the monopolies of copyright owners. In the digital world, these acts become infringements. They are reproductions of communications of copyright works. This means that the structure of the balance between rights holders and consumers has once again been shifted. The arguments ​the consumer groups make is that the use is required to restore some of that balance. The argument that the copyright owners make is that the correct balance has also been shifted in the other direction by making infringement much easier and therefore copyright should not be weakened any further and in fact it should be strengthened ​in the digital age in order to enable return on investment. ​+In the analogue world, it was never an infringement to read a book or to share a book with a friend. These were in the analogue world, important limits to the monopolies of copyright owners. In the digital world, these acts become infringements. They are reproductions of communications of copyright works. This means that the structure of the balance between rights holders and consumers has once again been shifted. The arguments consumer groups make is that the use is required to restore some of that balance. The argument that the copyright owners make is that the correct balance has also been shifted in the other direction by making infringement much easier and therefore copyright should not be weakened any further and in fact it should be strengthened in order to enable return on investment. ​
  
 Whether Australia should adopt the recommendations of the ALRC and the PC is still an ongoing debate. ​ Whether Australia should adopt the recommendations of the ALRC and the PC is still an ongoing debate. ​
  
  • ausip/copyrightdefences.txt
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