The Australian Law Reform Commission has recommended Australia amend the Copyright Act to adopt the fair use doctrine.

While the reform’s most ardent opponents would have us believe we are opening the floodgates to a defence that is too unpredictable, these fears are borne of a misunderstanding of its operation.

You’ve just made a copy of your music library so that you can use it in your car. You paid for the music and it’s all stored on the PC. You want to store it in the cloud so that you can access it from any computer in the world. But the copyright owner is the only one with the exclusive right to make copies of the music. At present, there needs to be a specific exception in the Copyright Actthat allows you to do so (unfortunately, at present, there isn’t).

This is where ‘fair use’ comes in. Fair use is a popular exception to copyright infringement that exists in the United States, South Korea, Israel and the Philippines.

In lieu of listing specific things that you can do without drawing the ire of the copyright owner, the doctrine simply asks: is what you’re doing ‘fair’ (by reference to fairness factors)? If your use can be characterised as fair, then you haven’t infringed copyright.

Some commentators are concerned the nature of the ‘fairness factors’ means fair use can occasionally extend much farther than intended. They tout the recent decision in Authors Guild, Inc. v Google, Inc. (the Google Books case) as an example we in Australia should be careful to avoid.

Google Books in a nutshell

Back in 2004, Google, Inc. started the ‘Google Books Project’. The aim was to scan every published work, creating a huge archive of knowledge that would be searchable through the Google search portal.

Cue the Author’s Guild in the U.S. who, in 2005, brought an action against Google alleging this amounted to copyright infringement. Google responded that its use was “fair use” as considered against the ‘fairness factors’.

Eight years on and the U.S. District Court has handed down its decision. It considered the benefits of the Google Books Project and held that it is a fair use as it “…provides significant public benefits. It advances the progress of the arts and sciences…”.

So, does this mean that if the fair use doctrine is in effect, any use of a copyright work that ‘advances the progress of the arts and sciences’ is “fair” for the purposes of the doctrine?  According to the Author’s Guild and critics in Australia, the answer is ‘yes’.

Naturally, it has many stakeholders nervous. There seem to be a variety of infringing uses that arguably ‘advance the progress of the arts and sciences’.

Fair use in Australia

The ALRC has recommended the fair use doctrine be incorporated into Australian law on the basis it will ‘assist innovation’. As the Hargreaves Review in the UK identified, the speed of digital innovation in recent years has heightened consumer awareness of the benefits of having access to a so-called ‘copyright-free zone’ that allows certain use of copyright works.

Fair use is one example of a ‘copyright-free zone’. The ALRC notes in its report that the economic benefits that flow from fair use are essential to remaining relevant in a fiercely competitive global market. The benefits of fair use for a growing sector such as cloud services are discussed in Fair Use: Cloud is the limit.

But what of the ‘fairness factors’ that critics claim allow alarmingly broad interpretation of the law, such as in the Google Books case?

The ALRC has proposed Australia adopt the four American ‘fairness factors’ almost word-for-word. That is, a court must consider:

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

The emboldened wording is unique to the proposed Australian provision and is designed to head-off some of the issues that have plagued fair use in the U.S.

Why we shouldn’t fear fair use

Should we be worried that a use that “advances the progress of the arts and sciences” will be sufficient to constitute fair use in Australia?

The simple answer is no. A small difference in the nature of the copyright material used or the substantiality of the part used can have a dramatic effect on whether a use amounts to a fair use or not.

The key takeaway from the Google Books case is less about copyright itself and more about statutory interpretation. The Google Books saw the U.S. court do something that is common in the United States but rare in Australia—the court turned to the Constitution for guidance as to how to apply the fair use doctrine. Rarely do Australian courts look beyond the explanatory memoranda and turn to the relevant head of power in the Australian Constitution for guidance on how broadly a statutory provision should be interpreted.

If anything, the Google Books case is simply a timely reminder that the scope of copyright protection in Australia is very different to that in the United States. In the same way that the fair dealing exceptions in Australia have developed in a very different way to their counterpart provisions in the United Kingdom, so too will fair use travel a different path to the one it has marched in the United States if enacted here—the lone similarity is the hope this technologically neutral doctrine will have the flexibility to respond to innovation and new business processes in a way like never before.