Copyright Law: The Fair Use Exception in the ALRC Copyright and the Digital Economy Inquiry

Submissions in response to the Discussion Paper on the Australian Law Reform Committee (ALRC) Copyright Inquiry have closed ahead of the final report on the Inquiry, set to be delivered on 30 November this year.

Commenced in June 2012, the Inquiry is focussing on the question of whether statutory licences and exceptions to copyright infringement under the Copyright Act 1968 are sufficient and suitable in the digital environment, and whether further exceptions should be recommended.

Fair Use Exception

In its recent Discussion Paper, the ALRC suggested that Australian copyright law should have a “fair use” provision allowing people limited use of copyright material without obtaining authorisation from the copyright owner(s), provided the use is considered "fair".

Whether the use is “fair” depends on the facts of each case. It is not usually fair to use something that is available for purchase, or to use too much of something that is under copyright, or to use something in a manner that makes it less likely that others will buy it. Internationally, while many other countries recognise similar exceptions to copyright, only the United States and Israel fully recognise the concept of fair use.

The Test

Despite jurisdictional variations, fair use, also known as fair dealing, doctrines around the world use the following same four fairness factors in the balancing test:

• The purpose and character of the use – for example, is it for commercial use? for educational purposes? news reporting? etc.

• The nature of the copyright material used –for example, does it list or describe factual information, or is it highly creative?

• The amount and substantiality of the material used

• The effect on the potential market for or value of the material
   

Illustrative Purposes

The ALRC has also proposed amending the Copyright Act to include a list of general categories of purposes— “illustrative purposes” —that might be considered fair use. The proposed list includes:

• Research or study;

• Criticism or review;

• Parody or satire;

• Reporting news;

• Non-consumptive;

• Private and domestic;

• Quotation;

• Education; and

• Public administration.

The list is not exhaustive and simply because a certain use falls into one of the categories will not guarantee it will be considered fair use.  In each instance the four fairness factors must be the primary considerations however, if a use falls within a category it is more likely to be considered fair use.

Click here to read more about the Inquiry.

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