Copyright Groups Question Fair Use In Australian Copyright Reform

Among hundreds of comments in the context of an ongoing Australian inquiry on copyright exceptions in the digital economy, organisations representing the interests of creative industries cast doubt on the inclusion of a fair use exception in Australian copyright law.

In the inquiry process, the Australian Law Reform Commission (ALRC) first released an issue paper in August 2012, followed by a discussion paper open to submissions from the public until 31 July 2013.

At present, the ALRC has already published 360 submissions from a wide range of organisations and individuals from around the world, including major copyright holders and corporations, publishers, authors, law firms and access to knowledge advocates.

The discussion paper contains a number of reform proposals, including the repeal of the statutory licences for educational institutions and an amendment to the Australian Copyright Act providing for a broad fair use exception.

In its submission, the International Federation of Reproduction Rights Organisations (IFRRO) questioned the proposed amendment of the Australian copyright law on the grounds that the “fair use” concept lies outside Australian legal tradition and its adoption would increase legal uncertainty. In addition, IFRRO claims that the proposal to repeal statutory licences in favour of voluntary ones does not meet the five framework principles of the inquiry, particularly with regard to respecting authorship and creating incentives for the creation of new works.

Also the Kernochan Center for Law Media and the Arts of the Columbia University School of Law stressed that fair use flexibility “in many instances comes at the cost of certainty and predictability,” while individual actors “need to know whether their particular plans will run afoul of the law.” The Kernochan submission follows a paper posted by Infojustice in response to a previous report by the Center (IPW, Copyright, 30 July 2013).

In a similar vein, the Australian Copyright Council (ACC) rejected the ALRC’s proposals for reform of the Copyright Act claiming that the commission “is propping a fair use doctrine that would be unique to Australia.” The ACC highlighted that “a broad fair use exception is likely to place an onus on rights holders to litigate.”

The ALRC is due to report by 30 November 2013.