Australia wants fair use (and so will you?)

From Australian Katfriends Fiona Phillips (super-stylish Director of the Australian Copyright Council) and John R Walker (visual artist and one of the few real experts in the area of artist resale royalty right, who recently contributed to the IPKat debate on extended collective licensing) comes news of a Discussion Paper on Copyright and the Digital Economy that the Australian Law Reform Committee (ALRC) published yesterday. 

The Discussion Paper highlights ALRC thinking to date and presents proposals for copyright law reform, with particular regard to:

•      Whether the exceptions and statutory licences in the Copyright Act 1968 are adequate and appropriate in the digital environment, and
•      Whether further exceptions should be adopted to recognise fair use of copyright material; allow transformative, innovative and collaborative use of copyright materials to create and deliver new products and services of public benefit; and allow appropriate access, use, interaction and production of copyright material online for social, private or domestic purposes.

The conclusions of the Discussion Paper are a series of (quite radical) proposals that, among other things, include:

Merpel is not so sure that having
to use this outfit is actually fair

• Introducing fair use into Australian law, thus repealing current enumerated list of exceptions and limitations.
• Extending the fair use exception to non-consumptive uses (eg caching, indexing, text or data mining), private and domestic use, transformative use and quotation, educational and Government use of copyright-protected materials.
• Applying the fair use exception when determining whether a use of an ‘orphan work’ infringes copyright.
• Repealing statutory licensing schemes in pts VA, VB and VII div 2 of the Copyright Act so that licences for the use of copyright material by governments, educational institutions, and institutions assisting persons with a print disability, are negotiated voluntarily.
• Repealing s 200AB of the Copyright Act, so that the fair use exception is applied when determining whether uses of copyright material not covered by specific libraries and archives exceptions infringe copyright.
• Calling for comments whether voluntary extended collective licensing should be facilitated to deal with mass digitisation projects by libraries, museums and archives [cf the path chosen by the UK when adopting the Enterprise and Regulatory Reform Act 2013]. In any case, the ALRC paper (§6.3, when speaking of statutory licensing schemes) acknowledges that "voluntary licences—whether direct or collective—are less prescriptive, more efficient and better suited to a digital age".
• Retransmission of free-to-air broadcasts.

Youngest copyright enthusiasts
have already submitted their comments:
what are you waiting for?

The public is invited to make submissions in response to this Discussion Paper and, in so doing, contribute to the law reform process in Australia. The closing date for submissions is Wednesday 31 July 2013.

Overall, debate about whether fair use is better than a close list of exceptions and limitations is not new, and also in Europe there have been academic studies favouring the adoption of a general fair use exception on the US model. What seems quite new is the economic assessment of whether fair use actually works better. This Kat recalls a study by Ghafele and Gibert which assessed the economic effects of introducing fair use into Singapore law (this happened in 2005) and concluded that a flexible fair use policy positively influences growth rates in private copying technology industries.