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Copyright reforms and the rights of authors: ‘Fair use’ versus ‘fair dealing’

Posted 24 October 2014 by Jen T. Kwok (NTEU National Office)

A shorter version of this post is included in the current Advocate.

Amidst the astounding technological developments that have transformed how content is created and shared at the start of the 21st century, it is almost universally acknowledged that Australia’s copyright laws need improvement. Multinationals like Google, Yahoo and EBay have indeed argued in Australia for the introduction of a “fair use” exception, as a way to harmonise Australian copyright law with the US, and as a basis to encourage innovation in Australia’s technological industries.

However, as the opponents of the fair use exception are numerous and diverse, so are its supporters.  In December 2013, the Australian Law Reform Commission (ALRC), delivered a report called Copyright and the Digital Economy, recommending modernisation of Australian copyright laws for an increasingly digital world. Aside from useful proposed changes around statutory licences, the Report’s primary recommendation was that Australia adopt a broad fair use exception. The fair use exception would replace the existing provision for "fair dealing", which allows copyrighted material to be used for a list of prescribed purposes, including research or study.

If fair use was not taken up, the Report had a fall-back position, arguing that the Copyright Act 1968 (Cwth) should be amended to provide expanded fair dealings with copyright materials, including in relation to more modern or “technologically neutral” uses such as non-commercial private use, library or archive use, and importantly, in relation to all forms of education.

The tension in this debate is contested largely along lines of great interest to academics, university librarians and university staff. This is the extent to which any reforms might ensure authors and creators are acknowledged, as well as the extent to which fair use may strengthen (or weaken) the incentives related to the creation of copyrighted materials. The Copyright Law and Practice Symposium, undertaken in March, demonstrated that there remain deep divides across the legal fraternity, especially about what the introduction of a broader fair use provision might entail.

Digging into the legal operation of fair use in the US renders a lot of grey. The business of this debate is centred on the concept of “transformative use”, or in other words the use of copyrighted materials “for a different purpose than the use for which the material was created”. On one hand transformative use is central to technological innovations that have allowed Google to scan and republish books online (without the authorisation of authors). The transformation identified by the US courts was that this opened new markets, rather than impinging on the old.

Others have argued that the meaning of transformative use in the US has become too muddied. A prime example comes from Cariou v. Prince, 714 F. 3d 694 (2d Cir. 2013), where a well-known artist Richard Prince, drew heavily on dozens of photographs by a lesser known artist, Patrick Cariou, and through a number of apparently minor alterations (such as increasing the size, blurring or sharpening of lines, adding content in colour) was able to demonstrate transformative use in 25 of 30 prints, and thus not required to pay the original author royalties.

Although the Coalition government has effectively shelved the ALRC report's key recommendation for the indefinite future (focusing instead on internet piracy), consideration about legislative reform of copyright will return, and the potential introduction of a fair use exception for university staff as either authors or users is important. Copyright reform, and in particular finding the right legal language to facilitate transformative use, will be a fundamental component of Australia's future innovation capability. As copyright users, the interest of university staff appeared to be covered in either iteration of the proposed fair dealing exception, and largely would be protected by the proposed fair use provision. However, if we accept that an author’s right to control work extends into recovery for loss of income from the more cynical exploitation of content, as creators, there are subtleties to this debate that deserve closer attention.

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