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., [2002] 2 S.C.R. 336, 2002 SCC 34 and CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 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.
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