Australia’s current copyright system:
As the US rights holder group the Copyright Alliance recently explained “some of the strongest supporters of fair use are the very creators who rely on copyright to earn a living”. It’s what lets them quote from and reference other artists and culture, learning from and building on what’s gone before. Australia’s copyright law doesn’t include an exception for artistic practice, meaning that most of the time quoting and referencing without a licence will be illegal here. From the Avalanches to Soda Jerk – Australian artists often face seemingly insurmountable copyright barriers to creation. Some have moved overseas in order to continue creating.
In fair use countries, from the US to Singapore and South Korea, creators still receive royalties for use of their works and there are licensing systems for sampling and commercial use of copyright material. The “fairness” test applied by fair use takes the impact on the rights holders into account, meaning it doesn’t usually allow uses that would replace a market sale. For example, teachers can’t make student copies of books under fair use – they’d need a license for that. At the same time, by making copyright more flexible, fair use lowers creators’ production costs and lets them produce more and better new works.
Downloading a movie to watch for free instead of paying for it would never pass the fairness test required by the law, which takes into account the impact on the creators. Nor would operating a platform where free movies or books or art work are generally available. Fair use targets uses that change the work, use it in an innovative way and or provide social benefits, without displacing expected sales. So by definition it does not apply to illegally streaming Game of Thrones or the latest episode of Glitch. In fair use countries, there are no examples of pirates relying on fair use to escape liability.
In fact, according to Ernst & Young, the biggest beneficiaries of a move to fair use would be libraries, schools and universities. They need the flexibility fair use would provide to innovate, collaborate and provide the best services they can. But there would be large-scale beneficiaries in the private sector as well. Today, developers of new technologies and applications often face a stark choice: to abandon their projects or move offshore to pursue them. Australian firms can compete in booming (and competitive) new areas like big data and artificial intelligence, but only if our copyright law creates a space for innovation.
The only thing that’s absolutely certain about the current law is that many important uses are not allowed. All laws require interpretation, including all of Australia’s current copyright laws – for example, it’s legal for you to use some quotes or excerpts in a review, but there’s nothing in the law that tells you exactly when or how much. The real question is whether fair use is predictable, and the experience in fair use countries is that it is. Among the handful of fair use cases that actually find their way to court, there are few (if any) surprises about the outcomes.
Fair use underpins some of the most productive creative economies in the world. Far from being uncertain, in these countries fair use is an essential element of copyright law that exists in harmony with sales, licences and business models. Industries and creative communities that rely on fair use can – and do – take proactive steps to ensure fair use is applied consistently by their members through best practice guidelines and industry protocols, similar to the code of practice Australian media companies already use for sports news reporting.
Occasionally you hear opponents of fair use say things like “fair use will allow best selling books to be printed on toilet paper.” But such comments have no basis in fact. Fair use does not allow people and companies to do anything they want – they are restricted to uses that are “fair”. Someone reproducing your work and selling it or giving it away without your permission would never be fair. And the presumption remains in favour of the creator – it’s up to the user to prove that their use is fair, not the other way around.