Greens Senator proposes fair use amendment to the Copyright Act

Posted by Ella Biggs and Paul Kallenbach

Image courtesy of renjith krishnan

On Thursday 27 June 2013, Greens Senator, Scott Ludlam delivered the Second Reading Speech for the Copyright Legislation Amendment (Fair Go For Fair Use) Bill 2013.  The proposed amendments address four aspects of the Copyright Act 1968 (Cth) (the Act). They are:

• removing digital locks and technical protection measures that restrict the ability of the visually impaired and the disabled to access copyright protected content (for example, allowing the reproduction of a text work as an audio work or the conversion of text to Braille);
• extending the scope of the current safe harbour provisions.  This change is aimed at ensuring that service providers, including internet service providers, search engines and public or not for profit institutions are not liable for the copyright infringement of their users (in certain circumstances);
• removing the ability for geocode mechanisms to affect the price of copyright protected content in Australia; and
• introducing a broad and technology neutral fair use provision into the Act.  This would change the approach to determining whether the use of a copyright protected work constitutes copyright infringement.

Of these proposed changes, the introduction of a broad fair use defence in the Act is the most far reaching, with the potential to significantly reshape the copyright law landscape in Australia. The fair use provision proposed by the Bill directly mirrors the equivalent provision in the United States,[1] where fair use plays a significant part in the analysis of copyright infringement.  It is unclear from the proposed Bill whether the current fair dealing defences would be repealed or how these would interact with the proposed fair use defence.

Given the potential significance of the introduction of a fair use defence, the Australian Law Reform Commission (ALRC) was commissioned to look into the issue in its report on 'Copyright and the Digital Economy'.  In its Discussion Paper, released in June 2013, the ALRC proposed a broad and flexible fair use standard that is informed by the current fair dealing defences (and some additional illustrative purposes) as well as general 'fairness' factors.[2]  The ALRC's final report is due in November 2013.

While the Bill is indicative of a movement within copyright circles to revise copyright law in Australia to make it more flexible in digital environment, it is unlikely that the Bill's proposed amendments to the Act will be passed by Parliament.  However, given the potentially wide reaching significance of the introduction of a fair use defence to Australia's copyright law, it is most unlikely that the Bill will receive any attention before the ALRC's final report on this issue is released.

[1] 17 USC § 107.
[2] Australian Law Reform Commission, 'Copyright and the Digital Economy' Discussion Paper 79 (May 2013) 90–8.