Wikipedia has reignited the debate surrounding the introduction of a fair use exception to copyright infringement in Australia.

The online encyclopaedia has introduced banners on its website that encourage Australians to lobby their MPs to replace the existing fair dealing provisions in the Copyright Act.

The introduction of fair use would change the way Australians interact with copyright works and in some cases may relieve businesses from having to negotiate licences to use copyright works.

Australia currently has fixed categories of exceptions to infringement which can allow people to use copyright works without the authorisation of the copyright owner. The categories of exceptions that are recognised under fair dealing allow the use of copyright works for the purposes of research/study, criticism/review, parody, reporting news and professional advice.

In contrast to these fixed fair dealing categories, the regime promoted by Wikipedia would allow businesses and individuals to avoid infringement where it would be fair to use the work in a particular set of circumstances.

Fair use was also recommended by the Productivity Commission’s 2016 report into Australia’s Intellectual Property Arrangements as a vehicle through which to enable Australian copyright law to encourage innovation and investment in new technologies.

Fair use not free use

Since the campaign for the adoption of fair use began to gain traction in Australia in the late 1990s, the debate around its introduction has often become emotionally charged as legislators are forced to weigh the value of rights given to creators against the costs paid by users of copyright works. This has often muddied the quality of information available to the general public regarding the proposed changes.

Wikipedia’s campaign has been criticised for stating that they are currently only able to avoid copyright infringement in Australia by hosting their site in the United States. In particular, Wikipedia may be liable for copyright infringement where Australians access the site and images are electronically transmitted to them – irrespective of where the site is hosted.

These views are symptomatic of a range of misconceptions regarding fair use that typically conflate the reform of existing exceptions to infringement with increased access to copyright works in Australia.

Don’t get your hopes up – fair use is not a golden ticket to download season seven of Game of Thrones.

The hunt for Australian unicorns

Proponents of the introduction of a fair use exception in Australia point to the relatively greater success of tech start-ups in the US and argue that the growth of these companies has been fostered by the existence of a fair use exception.

Technologies that have been found to fall within the American fair use exception typically make a transformative use of copyright works in a context other than the historical market for the work. For example, in order to develop Google Books, Google scanned over 20 million books in order to produce unauthorised copies that users could search and then view snippets of text from before purchasing books online.

In 2016 the US Supreme Court refused an appeal against an earlier finding that the Google Books project constituted fair use of the copyright works contained in the books and that the digitised copies did not infringe the authors’ copyright.

While the existence of a fair use exception may not be the sole factor behind the strength of US tech start-ups, it could play a role in encouraging investment in emerging technologies which would otherwise be susceptible to allegations of copyright infringement.

An encyclopaedic solution?

Fair use may assist in providing a technology neutral and flexible method for dealing with exceptions to copyright infringement. However, it won’t allow businesses to ignore copyright when it is convenient to do so.

If the proposed changes are introduced, the issue of whether the use of a particular copyright work is fair will need to be determined by considering the nature of the work and the circumstances surrounding its use.

As most of us already know, Wikipedia can provide a useful starting point but it’s rarely a definitive authority on any issue.

Any informed debate on fair use needs to start with an understanding of the existing rights given to copyright owners before considering exceptions to the enforcement of these rights.