Arguments Against Fair Use In Australia

Introduction The law in Australia in relation to copyright is inadequate because there are many restrictions on fair dealing. This area of the law could be improved by removing many of the restrictions on fair dealing in Australia and adopting a system similar to the fair use system in place in America. The reason for this…
Background There is a large debate surrounding fair dealing and fair use in Australia. The reason for this is that Australia's laws around fair dealing are far more restrictive than those in the US. In the US fair use laws basically mean that "you can make use of anything that is fair" as long as you are following some set guidelines. Australia's fair use laws on the other hand say that "you can make any use that is fair
as long as it is for certain set purposes.” The problem that arises from this is that even though Australia is quite flexible, even allowing parody and satire which most places don't, it still has its limits, leaving a problematic gap in Australia's copyright law. This gap lies "between the uses that can be made legally under an exception – photocopying material for research and study, – and the uses that can be licensed – downloading a movie". The reason this is a problem is that in that gap there is a large range of common uses that in theory are illegal, however it isn't worth the copyright owners time to prevent or license. The other problem with fair dealing is that because of its limited flexibility it can't handle new uses, such as new technology that uses copyright material in an innovative way.
Legislation The main act being looked at in this report is the Copyright Act 1968.
The Copyright Act 1968 is "An Act relating to copyright and the protection of certain performances, and for other purposes". The main part of the act this report will focus on are is division 3 as it relates to fair dealing. The four exemptions to copyright in Australia are as follows: research or study; criticism or review; parody or satire; and reporting news. These exemptions are extremely limited and do not allow for the basic transformative allowances made by the American fair use laws. The other act being looked at is the 17 U.S. Code "§ 107 - Limitations on exclusive rights: Fair use". This report outlines the limitations on fair use in the US, it sets them out as follows:
"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."
These limitations are much more easy to understand than the Australian laws. This is because instead of applying to specific copyrights the US law applies to all copyrighted material and is decided on a case by case basis instead of being a blanket law.
Stakeholders There are a number of key stakeholders in this debate are the Australian government, creators such as authors and artists, educators and news outlets.
In a publication made by the ALRC (Australian Law Reform Committee) titled Copyright and the Digital Economy sets out a number of arguments for and against fair use.
The four main arguments in support of fair use are that it: "provides flexibility to respond to changing conditions as it is principles-based and technology neutral; assists innovation; restores balance to the copyright system; and assists with meeting consumer expectations." The four main arguments against fair use are that it: "is unnecessary and no case is made out for it; would create uncertainty and expense; originated in a different legal environment; and may not comply with the three-step test." These arguments encapsulate the arguments made by the key stakeholders on both sides of the argument. Telstra submitted in favour that the current exemptions to fair use are made in response to existing technologies and as a result tend to have a narrow "patchwork" application to circumstances that exist at the time the exemption is introduced.
(https://www.alrc.gov.au/publications/copyright-and-digital-economy-dp-79/4-case-fair-use-australia)

Evaluation The current law does not meet all the criteria for a good law.
There are several areas of this law that are ineffective, such as the fact that the allowances in the law are very limited. The law somewhat balances the rights of the individual and the rights of the community, however It does not apply equally to all because there are more limits placed on some copyrights than others. The law is not clear in that there is a potential for the laws to confuse people in relation to what is exempt and what is not. It is consistent throughout all states and territories and it has been stable to date. It is not capable of being enforced. The reason for this is that even if the copyrighted material is blocked in Australia it can still be accessed through the use of proxies and torrents. This can be shown in geo-blocked tv shows such as game of thrones, a tv series with one of the highest piracy rates. (get a
source).
Recommendations The need for reform is pressing but not entirely urgent. Some of the likely consequences of failure to implement the proposed reforms are an increase in piracy and a potential loss of income for copyright holders. There is also the possibility for the current laws to confuse people in relation to what is allowed and what is not. Thankfully an inquiry into the current laws is already being run by the Productivity Commission and is reaching the same conclusion as this report. In short this report recommends that Australia accept copyright laws similar to those in the US.
Conclusion