Copyright Limitations and Exceptions

  • In copyright law, there is a need to achieve a balance of interests – between encouraging and providing incentives to those who create innovative materials, on the one hand, and the interests of users of copyright materials, on the other hand, in being able to access and reuse materials embodying original ideas or information.

CLRC, Copyright and Contract (2002):
* The exclusive rights of copyright are partly defined by the exceptions, in that the rights only exist to the extent that they are not qualified by the exceptions. * The rights conferred on copyright owners are subject to competing interests which require the delineation of exceptions and limitations to the exclusive rights.

Statutory exceptions include:

  • Fair dealing.
  • Specific royalty-free exceptions.
  • Statutory licenses.

The fair dealing provisions:

  • mark out areas of free use of copyright materials, in the public interest and provide a complete defence to an infringement action.
  • are commonly referred to as exceptions but are more accurately conceptualised as establishing limits to the scope of the bundle of exclusive rights.
  • 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.
  • permit royalty-free use of a substantial part or the whole of the work or subject matter without the authorisation of the copyright owner.

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 following purposes:

  • research or study (ss 40 and 103C);
  • criticism or review (ss 41 and 103A);
  • reporting of news (ss 42 and 103B);
  • judicial proceedings or the giving of professional legal advice (ss 43 and 104);
  • parody or satire (ss 41A, 103AA).

Dan Winters explains the difference between Fair use and fair dealing

Research or Study

Video overview by Nicolas Suzor on research or study.

  • “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”.
    • De Garis v Neville Jeffress Pidler Pty Ltd: 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 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.
    • De Garis v Neville Jeffress Pidler Pty Ltd: 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.
    • 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 purpose and character of the dealing;
    • the nature of the work or audio-visual item;
    • the possibility of obtaining the work or audio-visual item within a reasonable time at an ordinary commercial price;
    • the effect of the dealing upon the potential market for, or value of, the work or audio-visual 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):
    • 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)).
      • 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)).
    • 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)).
      • 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)).
      • 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)).
      • Note: These are deemed to be fair dealings, but are not exhaustive. It might be fair to reproduce quantitatively more in all the circumstances.

Criticism or Review

Video overview by Nicolas Suzor on criticism or review.

  • There may be a fair dealing for the purpose of criticism or review provided 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)).
  • “Criticism” and “review” are not defined – given dictionary meaning.
  • In 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” 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.
TCN Channel Nine Pty Ltd v Network Ten Ltd [2001] FCA 108
  • Conti J at [66]:
    • “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.
TCN Channel Nine Pty Ltd v Network Ten Ltd (2002) 55 IPR 112
  • Hely J (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’.”

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 (ss 42 and 103B):
    • in a newspaper, magazine or periodical, provided sufficient acknowledgement is made of the work or audio-visual item;
    • by means of an electronic communication;
    • in a cinematograph film.
  • It covers 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)).
  • 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.
  • News reported with humour may still fall within the ambit of the fair dealing provisions.
    • TCN Channel Nine Pty Ltd v Network Ten Ltd (2002) 55 IPR 112 at [66] per Conti J and at [98] per Hely J
  • 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)).
  • There is no fair dealing counterpart in relation to the use of audio-visual items for these purposes.

Judicial Proceedings

  • 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)).

Parody or Satire

  • The new provisions (ss 41A and 103AA) 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.
  • The Act does not include a definition of ‘parody’ or ‘satire’ or require sufficient acknowledgment of the work to be made.
    • TCN Channel Nine Pty Ltd v Network Ten Ltd [2001] FCA 108 at [17] per Conti J
  • 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 Panel involved parody and satire but was over before the defence was introduced. Would it have made a difference?
  • 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
    • 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 (2002) 118 FCR 417 Hely J (Sundberg and Finkelstein JJ agreeing) at [115]
    • fair dealing for the purposes of reporting the news.
      • Beloff v Pressdram [1973] 1 All ER 241
      • BBC v BSB [1992] Ch 141
      • Nine Network Australia v ABC (1999) 48 IPR 333
      • TCN Channel Nine Pty Ltd v Network Ten Ltd (2001) 108 FCR 235 at [66] per Conti J
  • What is the likely scope of the new 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.
      • Parody is generally more likely to be considered fair use.
    • Under the fair use doctrine, the courts have regard to four factors:
      • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
      • the nature of the copyrighted work;
      • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
      • the effect of the use upon the potential market for or value of the copyrighted work.
Campbell v Acuff-Rose, 510 US 569 (1994)
  • Supreme Court held that 2 Live Crew’s Parody of Roy Orbison’s ‘Pretty Woman’ was a fair use.
  • 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.
  • 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.
Dr Seuss Enterprises v Penguin Books USA, Inc, 109 F.3d 1394 (9th Cir. 1997)
  • Used the style of a Dr Seuss book while retelling the facts of the OJ Simpson murder trial.
  • Ninth Circuit held that the book was a satire, not a parody, because it did not target Dr Seuss.
  • It merely used Dr Seuss characters and style to tell the story of the murder.
Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. N.Y. 1998)
  • Paramount photoshopped Leslie Nielsen’s head onto a photo of a naked pregnant woman, mimicking the famous portrait of Demi Moore by Annie Leibovitz for Vanity Fair.
  • Second Circuit found fair use: the studio’s use was a transformative parody because it imitated the original for comic effect or ridicule.
Sun Trust v Houghton Mifflin, 268 F.3d 1257 (11th Cir. 2001)
  • Alice Randall wrote ‘The Wind Done Gone’, reinterpreting Margaret Mitchell’s classic Gone with the Wind from the point of view of Cynara, a slave.
  • Eleventh Circuit found that the use was probably a fair use. While it was a satire of society, it was also critical of the racist perspectives embedded in the original.
Salinger v. Colting, 641 F. Supp. 2d 250 (S.D. N.Y. 2009)
  • 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.

Private Copying: Time Shifting (s 111)

Jennifer Singleton on Time Shifting

* 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.

  • This exception will not apply if an article or thing embodying the film or recording is:
    • sold;
    • let for hire;
    • by way of trade offered or exposed for sale or hire;
    • distributed for the purpose of trade or otherwise (not including loaning the article or thing to a member of the lender's family or household for the member's private and domestic use);
    • used for causing the film or recording to be seen or heard in public;
    • used for broadcasting the film or recording.
National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd [2012] FCAFC 59

Watch Stuart Efstathis on Optus TV Now

  • 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?

Held: 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]
  • “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 s 111: “There is nothing in the language, or the provenance, of s 111 to suggest that it was intended to cover commercial copying on behalf of individuals.” [89]

Private Copying: Format Shifting

Lindsay Mengel on format shifting

Lachlan McCormick on Format Shifting

Books, newspapers and periodicals (s 43C)

You can copy a book, newspaper or periodical that you own to use in a different format (eg scanning an article from a magazine onto your personal computer to keep as a reference).

Photographs (s 47J)

You are permitted to copy a photograph:

  • where the copy you own is in hardcopy form – into an electronic form (for example by scanning into a computer), or
  • where the copy you own is in electronic form – into a hardcopy form (for example by printing a digital file).

Videotapes (s 110AA):

You are able to copy a video cassette that you own into an electronic form (for example to a DVD).

Backups of Computer Programs (s 47C)

  • Limited backup right for software.
  • Only extends to literary works – copying computer games is not allowed.

The limits to the new exceptions are:

  • The original copy you own must be a legitimate copy.
  • You cannot sell, hire, lend or give away any copy made but you can lend a copy to a member of your family or household.
  • You are free to dispose of the original legitimate copy of a sound recording, but you must not keep any copy you have made from the original.
  • Making multiple copies in a similar format is not allowed, either from the original copy you own or from a later copy.
  • You are not authorised to remove any anti-copying measures applied by the manufacturer to the material you own.

Private Copying: Music (s 109)

  • If:
    • 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 sole purpose of making the later copy is the owner's private and domestic use of the later copy with a device that:
      • is a device that can be used to cause sound recordings to be heard; and
      • he or she owns; and
    • the earlier copy was not made by downloading over the Internet a digital recording of a radio broadcast or similar program; and
    • the earlier copy is not an infringing copy of the sound recording, a broadcast or a literary, dramatic or musical work included in the sound recording;
  • then the making of the later copy does not infringe copyright in the sound recording, or in a literary, dramatic or musical work or other subject matter included in the sound recording.
  • This exception will not apply if the earlier copy or the later copy is:
    • sold;
    • let for hire;
    • by way of trade offered or exposed for sale or hire;
    • distributed for the purpose of trade or otherwise (not including loaning the earlier copy or the later copy to a member of the lender's family or household for the member's private and domestic use);
    • used for causing the film or recording to be seen or heard in public;
    • used for broadcasting the film or recording.

Computer Software

  • 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:
    • 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 purpose of studying the ideas behind the program and the way it functions (s 47B(3))
    • for use in lieu of the original copy, or if the original copy is lost, destroyed or becomes unusable (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 (s 47D):
      • reasonably necessary to obtain such information and to achieve such interoperability; and
      • the information was not readily available to the owner or licensee.
    • 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 testing the security of the original copy or network or system of which the original copy is part (s 47F).
  • Note that most of these exceptions are not excludable by contract (s 47H).

Other Specific, Royalty Free Exceptions

Other specific, royalty-free exceptions include:

  • Performance of a literary, dramatic or musical work or playing a sound recording or film in a school classroom does not infringe copyright (s 28).
  • 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 “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” (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).
  • 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 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 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).
  • Where there is copyright in a building, copyright is not infringed by reconstructing it (s 73).

Statutory licenses include:

  • Use of copyright material “for the services of the State” (ss 183 and 183A – C).
  • Educational institutions and institutions assisting persons with a print disability or an intellectual disability - copy and communicate sound and television broadcasts (Part VA) and to reproduce and communicate works and published editions (Part VB), on condition that equitable remuneration is paid to an approved collecting society).
  • re-recording of musical works, as long as the subsequent recording does not debase the work (s 55).
  • the making of sound broadcasts of literary and dramatic works by the holders of a print disability radio licence (s 47A).
  • recording of musical and literary works (Part III, Div 6).
  • retransmissions of free-to-air broadcasts (Part VC).
  • public performance and broadcasting of sound recordings (ss 108(1) and 109(1)).

Kate van der Heyden - Statutory licences in copyright

Video overview by Nicolas Suzor on reform for Australian Copyright defences and exceptions.

The below text is a copy of everything Nicolas talks about in the video, transcribed by Lauren Barea. Please help out by editing and summarising some of the detail.

ALRC submission on the Fair Use exception Replace the purpose specific copyright infringements with a general open ended fair use test In the US, the fair use exception is based on an assessment of four separate factors. 1. The purpose and character of the use depending on whether the use is commercial or not for profit 2. The nature of the copyrighted work 3. The amount and substantiality of the proportion used 4. The effect of the use upon the potential market

Purpose and character and the effective use end up being the most important factors It enables users of copyright material to effectively use the material without having to obtain a licence for such use. Allows the user to make an argument as to why they should be able to use the material freely
Main argument for the changes proposed by the ALRC is the ease of use in applying the factors to fair use rather than the complicated method we have in Australian law.

ALRC finds the fair use exception advantageous as it's technology neutral, it promotes the public interest in transformative uses and fair use acts to provide the breathing room for innovation - investment in new ways of using and disseminating content. It better aligns with normal consumer expectations. It has been noticed in practice that most Australians intuitively believe that Australia has a fair use exception even though we don’t.

Australian uses are really an extensive and quite 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. So there’s specific exceptions for books, newspapers and periodicals, photographs and videotapes, format shifting and music, transferring it from one format to another, specific exceptions for personal private uses, performances in class rooms etc. There are exceptions for photographing buildings and sculptures in public spaces, exceptions for incidentally including artistic works in a film or broadcast, exceptions for public reputation or extracted works, or creating new works based on works created by the same author.

This system creates quite a complex copyright act as you can imagine. It’s a drafting process that attempts to foresee the types of uses of works that will be socially beneficial and creates specific exceptions around those particular purposes. The US approach to the fair use approach instead simplifies these tests and leaves it to the court to come up with a jurisprudence for when uses will be considered to be fair. Therefore, all of the uses just mentioned are likely to be excused as fair uses under the US copyright act leading to a much more simple approach. Some are concerned that it is also a more unpredictable approach although the empirical evidence doesn't seem to support that claim.

Another reason the ALRC seems to be adopting a transformative use is to maintain technological neutrality of the copyright act. For example, the copyright act now includes provisions that enable timeshiftimg and format shifting of particular works, but they're worded in language that is quite restrictive about the technologies that are used. Because our law is always drafted in retrospect, it can take quite a long time to adapt to these new uses. We only got the format and timeshifting exceptions that allow people to use VCR’s in their home, about 20-25 years after the introduction of the commercial VCR. Essentially, we introduced these exceptions at about the point in which the technology becomes obsolete and we move to digital. This for a lot of people and for the ALRC is a problem when it comes to our method of drawing exceptions. It’s not able to maintain the same function as technology changes. The fair use enables the courts to adapt the law in response to technological change rather than waiting on legislature to introduce new restrictions on the rights of copyright owners to deal with particular new developments.

Another set of reasons why the ALRC suggests we might introduce fair use revolve around transformative use. The use of copyright material for different purposes. This is not ripping off material to pass it off as your own to undercut the copyright owners monopoly, but taking copyright material either for artistic purposes or non-consumptive purposes.

Under Australian law, it’s permissible to reuse copyright material if you're using it for the purposes of criticism or review; or parody or satire or news reporting, for example. What is not permissible is to reuse copyright material for merely artistic purposes of for communicative purposes, merely to communicate it in a different way. There are plenty of examples that can be thought of in which US creators have the ability to repurpose, sample, mix, mash up existing works in order to create new works or new expression. These sorts of things are not permissible under Australian law. e.g. Pogo uses clips from disney films to make innovative new songs. Sampling artists would need a licence for each clip that is used if its a substantial part of the original in order to be able to create their works.
Other examples, the Shepherd fair hope poster used in the Obama campaign building off a press photograph by Garcia. More controversially we have the works of Patrick Carry, the work was recently held to be a fair use in the US. but would unlikely to be excusable in Australia.

The other types of transformative works that we might seek to protect that are permissible in the US under the fair use but not under the Australian fair dealing, are not consumptive uses of copyright material. This means, when digital material processed by a machine, necessarily, copies are made as part of that process. So in the digital world for example, we might often to run algorithms of certain kinds over copyright material, search engines. Google search engines operates by creating a copy of all of the websites that it can crawl, in order to index it and reproduce it in response to search results.

In Australia, there are no specific exceptions for search engines. In the US, these search engines are able to operate because they're able to argue that their work are transformative, they are fair. On the balance of those four factors, Googles activities are fair because it increases the discoverability of the works and it doesn't interfere with the legitimate market of the copyright owner. These are the sorts of things that are not permissible to develop in Australia. For examples, Google books scans hardcopy books in order to create a searchable index of physical books that was not previously available. It’s important innovative work that has lots of downstream benefits, the least of which is to provide better access to the written word to people who are blind or otherwise visually impaired but it also increases discoverability, it increases the opportunity to engage in research, we now have a corpus of books that has been digitised so we can do a whole range of research activities to study how the languages have evolved, how different concepts have come in and out of popular consciousness. These are the sorts of things that are made possible by innovations in technology that rely on copying, analysing, reproducing and communicating the results of those analyses of existing copyright material and these are the things that are not permissible in Australia unless we introduce fair use.

The debate around fair use really centres around these core issues. Issues of flexibility, simplicity, 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 we think innovation and creativity happens that underpin 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.

On the other hand, people who argue in favour of disruptive innovation suggests that innovation technically happens by people who are not directly involved in the existing business models and that the reason that we've seen entrants like Google or Apple iTunes, innovated and creates breakthroughs and ways for accessing copyright material is because they have come from outside of the existing business model structure. Their arguments and the arguments of the people that support that type of innovation if that fair use provides a safety valve. It provides a way to encourage new types of innovation we hadn’t previously thought of in order to create new markets. There wouldn’t be a commercial incentive for an existing operator to invest in.

Other arguments around fair use focus on its impact on people, on individuals, either on the ability of people to speak and to express themselves, the big free speech element to fair use or the ability of people to access knowledge. This is the users rights aspect that says its the consumers of information need to be able to exercise their rights to access information. 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.

Finally, people worry about artistic uses because all expression is fundamentally built on existing expression. People that are not just worried about appropriations art but more broadly about the way in which we can use existing material as an influence in the creation of new works. e.g. man at work vs kookaburra sits in the old gum tree case. These are the types of uses that might be excusable under the fair use regime but are not permissible without a licence under the fair dealing regime because the use is not for parody, satire, criticism or review etc.

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