Fair use

What's the situation?

Australian law sets out a series of clear exceptions to copyright infringement known as "fair dealing". Fair dealing exceptions allow use of copyright material for the purposes of review or criticism, research or study, parody or satire, new reporting, judicial proceedings or legal advice. Meanwhile, under our statutory licensing scheme, schools, universities, businesses and libraries pay a small fee to publishers and authors to copy sections of their work without seeking permission.

However, a report published in November 2016, the Productivity Commission recommended to the Australian government that Australia's Copyright Act should scrap Australia's fair dealing provisions and adopt a US legal principle known as "fair use". The "fair use" principle allows individuals and enterprises to use copyright material without permission, provided that the use is "fair". However, the legislation does not define what is “fair”. It merely sets out four "fairness factors" to guide behaviour and courts are required to arbitrate on a case-by-case basis.

In the US, "fair use" has enabled large enterprises to use copyright material for free. A PricewaterhouseCoopers audit into the introduction of “fair use” in Australia forecasts the resulting increase in litigation costs to producers and artists at $133m a year. Meanwhile, when "fair dealing" exceptions were broadened in Canada, it resulted in authors and publishers losing 30 million Canadian dollars in royalty income from statutory licencing.

Yet, despite an outcry from Australia's creative industries and over 450 submissions in response to the report – including responses from the US Chamber of Commerce, the International Confederation of Societies of Authors and Composers, the International Publishers Association, the International Authors Forum, over 250 individual authors, 20 publishers, the ASA, Copyright Agency, the Australian Publishers Association and the Australian Booksellers Association, all arguing against "fair use" – the Productivity Commission has continued to recommend that Australia adopt this damaging copyright doctrine in its final report to government, made public in December 2016.

Read more about "fair use"

What should change?

Australian authors' creative incomes have dropped by nearly 50% in the past 17 years according to a 2015 Macquarie University report, from an average of $22,000 in the early 2000s to just $12,900 in 2015. To have to pay for costly litigation to protect their work from infringement, or to miss out on statutory licencing payments from schools and universities, is something that most Australian authors cannot afford.

Australian authors earn their income from the sale of their books and the paid use of their content through copying and repurposing. If an increased amount of that usage became permissible and free, the effects on the vibrant and successful Australian book ecosystem would be profound and deadly.

The ASA calls upon the government to reject “fair use” and support fair pay, so that our authors and illustrators can continue to write our stories and create our culture.

What's the ASA doing?

In May 2016, the ASA made a submission, accompanied by a letter of support from the International Authors Forum to the Productivity Commission in response to their draft report, and called upon its members to do the same. They did, in abundance, and the result was a powerful message which, though ignored by the Commission, cannot have failed to gain the attention of the government.

In addition, the ASA joined with the Australian Publishers' Association (APA), the Australian Booksellers' Association (ABA) and others to form Books Create Australia, a campaign body focused on speaking against the Productivity Commission's mission to make sweeping changes to the Copyright Act, based on out-of-date information and a very close-minded approach. This was the first time the book industry has spoken with one voice on the issues of territorial copyright and "fair use".

A Books Create delegation, including representatives from the ASA, travelled to Parliament House in November 2016 and met with more than 20 MPs and Senators from all parties. While these meetings focused largely on parallel importation, a strong base for future discussion on "fair use" has been established.

In February 2017, the ASA made a submission to the Government arguing against the introduction of "fair use".

What can you do?

Consider writing to your local MP and Senator about the impact "fair use" may have on Australian creatives and the industries that support them. Federal politicians are swamped by emails so if you can do it, a letter will pack more of a punch. Let them know what "fair use" could mean for you in your professional practice as an author or illustrator. Invite them to speak with you or the ASA further on the issue. Ask them to take action by opposing "fair use" in their party's arts and communications policy.

Contact your MP and Senator

And, if you haven't already, consider joining the ASA. The ASA's lobbying efforts in Canberra would not be possible without our members' support. The more voters we can show we represent, the clearer our voice will be heard by the politicians with the power to make change.

Join today

Alternatively, if you're already a member or prefer to contribute without joining the ASA, you can donate to our Endowment Fund. Donations to the Endowment Fund go directly towards supporting the ASA to lobby and campaign for the rights and professional interests of authors and illustrators.

Donate now

Share this page
© 2017 Australian Society of Authors (ASA)