Revisiting a flexible copyright exception in Australia

Some policy context …

Carolyn Dalton

• 1998 – CLRC Simplification Report Part 1– Consolidation of existing fair dealing provisions

into a single provision– Expansion of fair dealing into an open ended

model that refers to existing purposes, but not confined to those purposes

– General application of s40(2) factors to all fair dealings

• 2004 – AUSFTA considerations• JSCOT Rec 17:

“The Committee recommends ... replac[ing] the Australian doctrine of fair dealing for a doctrine that resembles the United States’ open-ended defence of fair use, to counter the effects of the extension of copyright protection and to correct the legal anomaly of time shifting and space shifting ...”

• 2005 – AGD examination of fair use, fair dealing and other exceptions in the Digital Age:

“I seek views on whether the Copyright Act should include more specific exceptions or a fair use exception which would facilitate the public’s access to copyright material.” Phillip Ruddock“if the Government were to consider amendments it may not be an appropriate solution to simply ‘replace’ the fair dealing exceptions or ‘add on’ an open ended fair use provision. The relationship of such a provision to other exceptions and statutory licences in the Copyright Act would be carefully considered to avoid problems arising from any overlap and consequent disruption to existing business and licensing arrangements.” (Issues Paper p33)

• 2006 – Regulatory Impact Statement re Sch 6 Copyright Amendment Bill (exceptions):– “In recent years, major reforms have been made to the

Act to strengthen copyright ... The Government is aware of concerns that exceptions to copyright have not kept pace with the legislative changes to provide stronger copyright protection” (pp6-7 EM)

– Re system of fair dealing and statutory licences considered in AGD fair use review “no interests want completely to abandon that approach” (p7 EM)

– “The Government will monitor the effects of legalising time shifting and format shifting and the development of case law with respect to an open-ended exception. It will review the new arrangements if necessary” (p13 EM)

• February 2012 – ALRC copyright review• Attorney-General Roxon:– “In our fast changing, technologically driven world, it’s

important to ensure our copyright laws are keeping pace with change”

– “The Gillard Government is determined to get the balance right between providing incentives for creators and innovators and encouraging new opportunities within a digital economy including via the National Broadband Network”

– “The inquiry will consider whether the exceptions in the Federal Copyright Act are adequate and appropriate in the fast paced digital environment”

Research or study?Parody or satire?Criticism or review?Reporting news?Legal advice?

Fair dealing

Fair use

Fair?