It’s time for fair use: Australian copyright inquiry discussion paper released

Two weeks ago the Australian Law Reform Commission (ALRC) released its much anticipated discussion paper for the ongoing Copyright and the Digital Economy inquiry  

Headline recommendation from the ALRC?  The introduction of fair use into Australian copyright law.

ALRC Commissioner for the inquiry, Jill McKeough stated on the release of the paper:

The reforms proposed include the introduction of a broad, flexible exception for fair use of copyright material and the consequent repeal of many of the current exceptions in the Copyright Act, so that the copyright regime becomes more flexible and adaptable.

The ALRC copyright inquiry has been underway since June 2012, with the ALRC set to deliver a final report to Government in November this year. The ALRC received 295 submissions to their Issues Paper with responses fairly evenly divided between advocates of fair use and those who are against it.

Under the terms of reference the ALRC has been asked to consider whether the exceptions and statutory licences in the Copyright Act 1968 are adequate and appropriate in the digital environment.   Their 382 page Discussion Paper makes 42 recommendations and suggests 5 framing principles for this Inquiry: acknowledging and respecting authorship and creation; maintaining incentives for creation of works and other subject matter; promoting fair access to and wide dissemination of content; providing rules that are flexible and adaptive to new technologies; and providing rules that are consistent with Australia’s international obligations. The final recommendations from the ALRC will be weighed against these principles. 

The most significant recommendation arising from the Discussion Paper is the introduction of a broad and flexible fair use provision. In considering fair use, the ALRC states at paragraph 4.92:

The ALRC has considered the various arguments made for and against the enactment of a fair use exception in Australia and concludes that fair use:

  • is suitable for the digital economy and will assist innovation;
  • provides a flexible standard;
  • is coherent and predictable;
  • is suitable for the Australian environment; and
  • is consistent with the three-step test.

Alongside fair use, the Discussion Paper also makes recommendations on issues like mass digitization, contracting out of copyright exceptions, educational copying and use of orphan works. The ADA has prepared brief summary sheets outlining the main proposals and impacts for consumers, the internet industry and libraries and archives

The ADA and ALCC put in a comprehensive submission to the ALRC, recommending the adoption of fair use in Australia. A number of these comments were picked up by the ALRC and included in the Discussion Paper.

In preparation for the release of the Discussion Paper, the ADA launched a copyright microsite, detailing a variety of issues affecting schools, universities, libraries and archives, consumers and internet industry.

The ADA will be putting in a submission reaffirming our support for fair use and addressing some detailed points of particular interest to our members.  If you have a comment you’d like to provide to the ADA please email our executive officer Trish Hepworth on

Submissions to the discussion paper are due by Wednesday 31 July .

Add new comment

© 2016 - Australian Digital Alliance

Website by Oxide Interactive Canberra web design and usability