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    Is this ‘fair’?: ALRC calls for introduction of fair use

    Geraldine Chua

    The Australian Law Reform Commission (ALRC) has released the final report for its inquiry, Copyright and the Digital Economy, which recommends the introduction of fair use in Australia.

    Fair use is found in a number of countries, notably the United States, and is a defence to copyright infringement that essentially asks if a particular use of someone else’s intellectual property is fair.

    It builds on existing Australian laws that allow the fair use of copyright material for purposes such as research, study and reporting the news.

    Commissioner in charge of the inquiry Professor Jill McKeough says that the existing Copyright Act is technology-specific and does not recognise what consumers want to do with copyright material. Fair use, she notes, is a flexible exception that can be applied to new technologies and services, which is “crucial in the digital economy”.

    “If you post a video of your 3-year-old on YouTube singing a One Direction song – that’s an infringement of copyright at the moment,” says McKeough.

    “Fair use can facilitate the public interest in accessing material, encourage new productive uses, and stimulate competition and innovation.”

    The case for fair use by the ALRC is founded on seven key arguments, mainly:

    • Fair use is flexible and technology-neutral
    • Fair use promotes public interest and transformative uses
    • Fair use assists innovation
    • Fair use better aligns with reasonable consumer expectations
    • Fair use helps protect rights holders’ markets
    • Fair use is sufficiently certain and predictable
    • Fair use is compatible with moral rights and international law

    The report also recommends some specific exceptions, such as for libraries and archives to make preservation copies, for judicial proceedings and royal commissions, and for public access to certain documents lodged with government.

    There are also reforms to encourage the use of ‘orphan works’—a wealth of copyright material that is neglected and wasted because rights holders cannot be found.

    The ALRC says it is important that rights-holders will have certainty when creating new material, while other users must also be confident that they can make new and productive use of copyright material without a license if appropriate.

    “Fair use also protects the interests of writers, musicians, film-makers, publishers and other rights holders. It was very important that in an inquiry about exceptions to copyright, we not lose sight of the purpose of copyright law,” says McKeough.

    However, the report and recommendation has faced criticism from the creative industry, as anyone will be able to use an artist’s work without permission provided they can prove their use was ‘fair’. Confidence when making use of copyright material is also called into question, given there will be no strict definitions of ‘fair’ in law.

    George Brandis: ‘I am convinced that we can do much to improve how copyright works in this country.’ Photograph: Alan Porritt/AAPIMAGE; source: the guardian

    Attorney-General and Minister for the Arts George Brandis, who decides whether to accept the recommendation of the ALRC, has noted that the proposed test lacked certainty, and risked artists and creators “being cheated of fair compensation for their creativity, which is their due”.

    The Guardian reports that Brandis told a copyright forum in Canberra on Friday that he is convinced “we can do much to improve how copyright works in this country”, but warns that reform should not come at the cost of creative industries.

    The report followed an 8 month inquiry, during which the ALRC produced two consultation documents and held a number of industry roundtables. A summary report is available on the ALRC website, and freely available as an ebook.

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