Australia doesn’t have fair use, and this causes problems. It makes our copyright law rigid and slow, unable to adapt to new uses and technologies, or even make room for many of the things we all do every day.

 

But what is fair use, and how is it different to what we have in Australia?

 

Fair use
Fair use is an open approach used by the United States and at least eight other countries to allow flexible use of copyright works. Fair use allows you to use copyright material without the permission of the copyright owner, as long as your use is “fair”. It recognises that many people have legitimate reasons for using copyright material and that legislators, however hard they try, cannot write laws for all of these uses.

In contrast, the approach taken by Australia’s outdated laws is to have “closed” exceptions – meaning that any use of copyright material that’s not explicitly permitted by the statute is illegal unless you have the copyright owner’s OK.

Take Wikipedia. Wikipedia is based in the US, and uses its fair use exception to incorporate material, such as low resolution thumbnails of album covers or logos, to improve access to knowledge for people all over the world.

If Wikipedia had been invented in Australia it would not be able to share this information, because nobody thought of the possibility of an open access encyclopedia before it was made – much less crafted a copyright exception to cover one.

How does fair use work?
Fair use is based on the simple question “is this use fair”? This means it is not limited to certain situations, people or technologies, and is flexible to deal with new ideas. For example, when caching and search engines came along, they were legal because they were covered by fair use. Without fair use the Internet simply would not exist.

Whether a particular use is fair will depend on all the facts of the case. Courts will look at four things:

  • The purpose and character of the use – for example whether it is commercial, private or makes a new use of the original work;
  • The nature of the original work – for example whether it is a creative work or just a factual piece;
  • The amount used and its substantiality – whether you’ve used all or only part of the work, and how important that part is;
  • The effect the use has on the potential market for or value of the copyrighted work – for example whether your use might stop others from buying the work.

But these factors are just a guide – the court will consider all the circumstances, including whether you were acting in good faith.

Fair use comes from case law dating back several centuries, but was first introduced as a legislative exception by the United States in 1978. Over the last decade it has been adopted by countries around the world to introduce flexibility and adaptability to copyright law. It is used by some of the world’s most dynamic and creative economies, such as the USA, Singapore and South Korea.

Fair dealing
Instead of fair use, Australia uses a narrower system of specific copyright exceptions. The most prominent of these are the “fair dealing” exceptions. Fair dealing works a lot like fair use – the courts will consider the same fairness factors, and will take all the circumstances into account.

Like fair use, fair dealing allows uses that are fair. But unlike fair use, it will only allow them if they are for one of five specified purposes:

  • research and study;
  • criticism and review;
  • reporting the news;
  • parody and satire; or
  • providing legal advice.

This means that fair dealing is a lot less flexible than fair use, and leaves huge gaps where activities that people generally think are reasonable are illegal unless you can get a licence from the copyright owner (often impossible eg if the owner can’t be found). Even if a court thinks a use is justified, if it doesn’t fall within one of the specific fair dealing exceptions, they have no option but to find it illegal.

The consequences for Australia
Without a broad, flexible exception like fair use, Australian law assumes that every new use is illegal until parliament introduces a specific exception to allow it. This means our law is constantly playing catch up. For instance, home video recording wasn’t legal until 2006 and Australian companies still work in a legal grey area if they provide basic services like internet search or cloud storage.

Australia’s tightly restricted copyright system leads to all kinds of problems, including:

  • consumers infringing copyright dozens of times a day, by forwarding emails, posting memes and other everyday activities;
  • cultural institutions being unable to digitise and share works in their collections, even if they are old and not available anywhere else;
  • schools paying to use freely available internet materials;
  • tech companies being unable to index and cache in Australia, and having to base their services offshore;
  • researchers being unable to use modern tools like text and datamining;
  • artists, authors and musicians being restricted in quoting past works, even their own; and
  • confusing inconsistencies in the law, such as it being legal to use quotes in a news story or parody sketch, but not in a serious artwork or academic article.

 

So why haven’t we introduced fair use yet?
Six government reviews since 1998 have concluded that Australia needs more flexible copyright exceptions in the style of a fair use provision. The most recent, the Productivity Commission’s Report into IP, concludes that with fair use

“Australia’s copyright system will better adapt to technological change and new uses of copyright material, without compromising incentives to create. Improved access to copyright works would increase economic activity and community welfare.”

But these recommendations always face strong opposition from those who think the current system is working well. We think the time to delay is over. Our current copyright laws are hindering, rather than enhancing, Australia.

Fair use would fix this.

As the Productivity Commission’s Deputy Chair Karen Chester puts it:

“The challenge for policymakers is to focus on the near-silent majority of users, of adapters, of educators and creators that will need fair use to bring about the next wave of innovation, jobs and equitable prosperity. For its absence will simply foster a society of less haves and more have nots.

So for the Commission, fair use has become not a nice to have, or even a good to have, but a policy must have.”

Right now the government is considering its response to the latest recommendation.

It’s time to let them know that we need fair use now.