As we near the end of Fair Use/Fair Dealing week, it is a chance to reflect on the importance of flexible and adaptable exceptions in our copyright systems worldwide.
One of the things that makes copyright difficult to navigate in the modern age is that it treats all works the same, as though they all have the same importance and the same commercial motivation. Every tweet, selfie and snapchat is given the same legal protection as a work of great literature and the latest Hollywood blockbuster (in fact, the tweet is protected longer than the film, though not the film’s script). In the same vein, it treats all uses equally. Forwarding that joke email to your friends is just as illegal as making pirate DVDs.
This is where exceptions and limitations come in. They are an essential break on the system, working to prevent the ridiculous outcomes that would otherwise result from copyright’s strictness, like the inability to read a children’s book aloud at a party, print out an entry form for a scout group, or run a search engine.
Exceptions can be specific – setting specific uses or circumstances that do not infringe copyright – or principle-based – spelling out general principles against which a use should be judged. Both have their place in the copyright system: specific exceptions are great for those circumstances that everyone agrees uncontroversally should be legal, like libraries and museums preserving their collections; principle-based exceptions are better for when you might need to make a judgement call based on the circumstances of each use, such as reporting the news or parody and satire.
Specific exceptions are usually fairly straightforward to apply (as long as they’re well written – many are not) but are rigid and don’t adapt to new circumstances as norms and technologies change. They generally need to be updated or they fall out of date (like s110AA, which refers to “videotape”). Principle-based exceptions require more judgement to apply – you can’t always be sure about particular uses in advance – but are more flexible and adaptable, and hence long lasting. The principles behind why uses should be legal change far less frequently than the specific facts. Generally, there is a trend of countries around the world moving towards principle-based exceptions to enable copyright to keep up in the digital age.
There are many, including the ADA, who argue that Australia’s copyright system relies too much on specific exceptions. There are around 90 specific exceptions in our Copyright Act, far more than almost any other common law country. We have a few principle based exceptions too – mainly fair dealing exceptions limited to specific uses (eg. disability access, legal advice), with a couple of very complexly written ones for specific users (cultural and educational institutions). But no general exceptions that allow common sense activities outside these uses or users. Instead, we just keep adding new specific exceptions.
This is how we ended up with s44BA, which allows you to reproduce health information from medicine bottles without breaking the law. It is also why recording TV was illegal in Australia until 2006 and why the uses I listed above – reading the children’s book, printing for a scout group or running a search engine – are probably still illegal in Australia. Because relying on parliament to pass a new law for every new use is not a good way to deal with change.
Compare this to the US, which has an open ended principle based exception in fair use (like fair dealing but without the limit to specific uses or users). There TV recording was legal as soon as it started (confirmed by case law in Sony Corp. v. Universal City Studios, also known as The Betamax case) and the idea that the government might need to go through the long and laborious process of passing legislation to permit copying of managed public health information or printing of entry forms would be ridiculous. It is also why almost every major tech company in the world is based in the US. If they come up with an invocation new technology or use – be it a search engine, out automatic translations, or artificial intelligence – it will generally be legal there straight away.
This is why is particularly important for Australia to recognise Fair Use Week this year. Last year, in response to the sixth recommendation by an independent report to introduce an open ended fair use exception to Australia (this time by the Productivity Commission, but previous recommendations have come from the Australian Law Reform Commission,, and others), the government committed to creating ‘a modernised copyright exceptions framework that keeps pace with technological advances and is flexible to adapt to future changes.’ We’re expecting a white paper to be released any second for the consultation on how best to do this.
Throughout this year those with an interest – from publishers and artists to libraries and technology companies – will be debating how best to future proof our copyright system. Few deny we’d be better off with more flexibility in our system but there’s strong disagreement on what form this should take. Publishers are afraid of losing revenues from educational users, schools want to be able to use the latest technologies fairly, and universities and tech companies need to conduct research into artificial intelligence without breaking the law. There’s common ground (use of material whose authors can’t be identified is less controversial) but also a great divide between those who just want to fill a few more of the gaps and those who think we should get the job done now with a single flexible and adaptable exception that will work into the future.
So if you’re interested and have the time, now would be the perfect moment to catch up on some reading about how and why fair use is important. There are tons of materials out there:
- For information on how fair use would benefit different groups in Australia, see the faircopyright website, faircopyright.org.au.
- Dr Nicolas Suzor of QUT has written a great comparison of fair use and fair dealingon Lifehacker
- Smartcopying has a good fact sheet mythbusting fair use and how it would work for Australia’s education sector
- There are also a whole swathe of great international materials on the Fair Use/Fair Dealing Week’s website
And if you form an opinion, why not tell the government about it when they announce the review? They need all the good opinions they can get.