In its Final Report into Intellectual Property Arrangements in Australia, the Productivity Commission has recommended that Australia adopt an American-style fair use exception to copyright infringement.

In anticipation of the Final Report, a group of Australian artists, musicians, actors and authors led by the Copyright Agency and APRA AMCOS, Australia’s music rights body, launched a campaign in December 2016 opposing the introduction of a broad fair use exception to copyright infringement. The campaign asks people to share online the book or song that changed their life, to remind people of the importance of protecting creators’ intellectual property rights.

The proposed fair use exception to copyright infringement

The adoption of an American-style fair use exception to copyright infringement was one of the many controversial recommendations in the Productivity Commission’s Final Report which was tabled by the Government on 20 December 2016.

Currently, the Copyright Act 1968 (Cth) contains specific fair dealing exceptions to copyright infringement. For example, it may not be an infringement of copyright to deal with material protected by copyright if it is for the purposes of research or study, criticism or review, parody or satire, or reporting the news. To date, such exceptions have been narrowly interpreted by Australian courts.

The fairness factors

The Productivity Commission’s Final Report has recommended the adoption of an open-ended exception to copyright infringement, in a form previously recommended by the Australian Law Reform Commission's 2014 Report, Copyright and the Digital Economy. The exception would provide a defence to copyright infringement where the use of copyright material is “fair”. The Productivity Commission recommended that the following factors be taken into account when determining whether use is fair:

  • the purpose and character of the use;
  • the nature of the copyright material;
  • the amount and substantiality of the part used; and
  • the effect of the use upon the potential market for, or value of, the copyright material.

Examples of fair use

The Productivity Commission also recommended the inclusion of the following non-exhaustive list of illustrative purposes that may qualify as fair use:

  • research or study;
  • criticism or review;
  • parody or satire;
  • reporting news;
  • professional advice;
  • quotation;
  • non-commercial private use;
  • incidental or technical use;
  • library or archive use;
  • education; and
  • access for people with disability.

Opposition to "fair use" proposal

The Copyright Agency and APRA AMCOS, who represent the interests of copyright owners, are opposed to the introduction of a fair use exception. APRA AMCOS stated in its submission to the Productivity Commission, following the Commission's Draft Report in April 2016, that “there is no public policy reason why any property owner should have his or her rights removed so that a third party can use those rights to build an innovative product.” The general concern from copyright owners is that a fair use exception to copyright infringement would be interpreted as allowing the free use of copyright material where that use should be paid for.

The Productivity Commission responded to this concern in the Final Report, stating that "fair use does not equate with free use in any of the jurisdictions in which it operates, nor would it in Australia." The Final Report highlighted that the fairness factors specifically consider the impact of the proposed use on the market for a work.

Government's response

The Minister for Industry, Innovation and Science, Greg Hunt, has stated that the Government will consider the Productivity Commission's recommendations and undertake further consultation with stakeholders prior to a response in mid-2017.

The consultation ends on 14 February 2017. Details about providing further feedback on the Final Report are available here.