A number of copyright scholars enjoyed a day of copyright reform related discussion thanks to Michael Handler (UNSW) and Emily Hudson (Oxford) at UNSW Law School on 17 December 2013. I opened the discussion on the question of fair use, and set out my brief speaking notes below: (A fully developed paper will follow)
The ALRC Final Report on Copyright and the Digital Environment was presented to the Government on 29 November 2013. The Attorney-General, Senator George Brandis has confirmed that the Final Report recommends the introduction a ‘broad flexible exception for fair use’. The full Report must be tabled before Parliament by February 2014 and a Government response to the Report should be forthcoming some time in 2014. However, the Attorney-General has already indicated that he does not support significant changes to the copyright law which would restrict the rights of copyright owners:
‘The government’s response to the ALRC report will be informed by the view that the rights of content owners and content creators ought not to be lessened and that they are entitled to continue to benefit from their intellectual property.’
The question that I would like to ask is why and how the introduction of a fair use exception would in fact lessen the rights of owners or prevent them from continuing to benefit from their intellectual property (in this case copyright)?
Leaving aside the example of the US which has a fair use law and seems to still be enabling copyright owners to make enough money to get by (!), other jurisdictions have more open ended exceptions to copyright, so fair use should not be seen as open slather for unremunerated uses.
Fair use can and should be cast in such a way that it reflects the balance of interests in copyright.
I have been considering the Canadian example: where despite significant legislative reform which declined to introduce a fair use exception, the Supreme Court has re-crafted fair dealing so it is in effect a fair use law.
Such an approach would build upon the decisions of the Canadian Supreme Court in Théberge v. Galerie d’Art du Petit Champlain inc.,  2 S.C.R. 336, 2002 SCC 34 and CCH Canadian Ltd. v. Law Society of Upper Canada,  1 S.C.R. 339, 2004 SCC 13, which recognized that the Copyright Act contained a ‘balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator’ and that this required a recognition of the limits on the rights of the copyright owner clearly articulating fair use as user’s rights.
In Alberta v Canadian Copyright Licensing Agency (one of five copyright cases handed down on 12 July 2012) the Supreme Court held that previews on iTunes were fair dealing, stating that: ‘One of the tools employed to achieve the proper balance between protection and access in the Act is the concept of fair dealing, which allows users to engage in some activities that might otherwise amount to copyright infringement. In order to maintain the proper balance between these interests, the fair dealing provision must not be interpreted restrictively.’
The Court continued:
‘an important goal of fair dealing is to allow users to employ copyrighted works in a way that helps them engage in their own acts of authorship and creativity’.
As Michael Geist has argued, this decision paves the way for a more 'principles based' approach to fair dealing which effectively transforms it into a law more akin to fair use. The Canadian experience may provide a good model for Australian reform in this area.
Therefore I contend that a fair use law may be crafted and interpreted in a way that does not represent a challenge to the rights of owners, but rather better reflects the balance underlying copyright law. The approach articulated above by the Attorney-General should not necessarily prevent the introduction of a fair use style defence.