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Ask the ASA: Fair Use

21.03.17

Fair Use

As you probably know, in its Final Report to the Government, the Productivity Commission recommended the introduction of a “fair use” exception to copyright infringement.

In this article, we’ll give you a rundown on fair use and how it might affect you. Then, we’d love to hear your opinion. Our role is to advocate to government on your behalf. So we want to know what you think about fair use: necessary reform which will have little impact, or disastrous blow to creators?  

What is the current law in Australia?

The Copyright Act permits some exceptions to copyright infringement, namely the use of a copyright work for the purposes of:

  • research or study
  • parody or satire
  • criticism or review
  • reporting the news
  • providing legal advice.

So, if I use a copyright work for one of these purposes and my dealing is ‘fair”, I have not infringed copyright. This is why the current arrangement is called ‘fair dealing’.

What is Fair Use?

‘Fair use’ is a new proposed exception to copyright infringement, designed to replace the current ‘fair dealing’ provisions. The United States has a ‘fair use’ exception in its copyright law and the Productivity Commission has recommended we adopt the US model (as formulated by the ALRC): fair use of copyright material does not infringe copyright where the use is determined to be fair by considering the following four factors:

1. The purpose and character of the use

I’ve decided to use a copyright work and I don’t have permission. The first thing a court would look at is my behavior; what is my purpose in using the copyright work? Was it parody or satire? Was I copying the work to criticise/review it? Was I reporting the news? Was I conducting research? Was I providing legal advice? These uses are generally considered fair.

Was I copying the work to make money?  If my purpose is primarily commercial, it is unlikely to be is fair.

2. The nature of the copyright material

A court would next look at the nature of the work I’m copying. My transgression is seen as more serious if I’ve copied a novel compared to, say, a short email. One is a highly creative work, the other may be directions to a restaurant. A court would also look at whether the copyright material has been published (use of an unpublished work is less likely to be fair, the right of publication being seen as an important right of the copyright owner) and whether it is commercially available (using a commercially available work is less likely to be fair.)

3. The effect of the use upon the potential market for, or value of, the copyright material

A court would consider the effect of my use of the copyright work: would it result in an adverse impact on the potential market for the original copyright owner? If so, that is not fair.

In the US, courts have considered substitutional use unfair but transformative use acceptable. If the copyright work is “transformed” into something new, for example pieces of a work mixed into a new multimedia product, then it is more likely to be considered fair.

Some examples: Using photographs in a collage has been found to be transformative and therefore fair use. A short clip from the Ed Sullivan television show shown in the stage musical, The Jersey Boys, was considered transformative as it was used as a biographical prop showing the development of the musical group and the use caused no financial harm to the copyright owners of the TV show. A movie company parodying the famous nude photograph of a pregnant Demi Moore on the cover of Vanity Fair magazine, to comic effect, was found to be transformative and therefore fair use. In contrast, a Harry Potter Encyclopedia was somewhat transformative but not sufficiently so to be fair use.

4. The amount and substantiality of the part used

Generally the more I use, the less likely I am to fall within fair use. The “amount” of a copyright work is measured in both qualitative and quantitative terms. Reproduction of even a small amount may be infringing if the section taken is a key, significant or distinctive part of the original work.

So, why adopt fair use in Australia?

The main argument in favour of fair use is that fair use is flexible and adaptive over time. Currently, in Australia, legislative change is required to expand the categories of use deemed to be fair. Under a “fair use” exception, courts would have the latitude to determine, if, on the facts, a new use of copyright material is fair.

The argument is that this better allows for innovation and new technological developments without requiring further changes in the law. Because it is based on a general principle (“is it fair?”) that principle may be applied to evolving uses, as technology continues to transform the way we enjoy, consume, access and share content.  Proponents of fair use refer to it as “future-proofed”.

The Productivity Commission gave the following examples of areas in which it saw fair use as providing beneficial flexibility:

  • Allowing cloud computing
  • Confirming the legality of incidental or technical use
  • Fostering creative and transformative works such as mashups
  • Permitting text and data mining for scientific research
  • Giving flexibility to Australian universities when creating Massive Open Online Courses

Why is the ASA concerned about fair use?

The ASA does not agree that fair use is the only way of ensuring our legal regime fosters technological innovation or a ‘remix culture’. We would prefer incremental reform of fair dealing over the adoption of fair use.

The ASA is concerned that introducing fair use will result in huge legal uncertainty and potentially undermine respect for copyright. It is open ended. Once it is introduced, it can be interpreted in an ever broader way.

 

As there will be a broad grey area of what constitutes ‘fair use’, we are worried that users will be emboldened to rely on the new ‘fair use’ exception rather than seek permission from the copyright owner and pay a licensing fee. Also, fair use will require expensive litigation to develop guidance from the courts as to what constitutes fair use in Australia. In practical terms, this gives a lot of power to potential infringers as most writers can’t afford to litigate or will shy away from litigation given the uncertainty of a fair use defence. This is particularly concerning in Australia where, unlike the USA, an unsuccessful litigant may well be ordered to pay all legal costs, including the ‘wronged’ party’s.

We are also concerned about the effect of fair use on educational publishing. By recommending that “education” be listed as an illustrative “fair” purpose, we consider that schools and universities are being invited to presume that copying copyright works (without permission or remuneration) is fair as long as it is for an educational purpose. We are concerned that the educational sector will cut back on uses for which they are willing to pay a fee under the educational statutory licensing scheme, resulting in a potentially significant loss of remuneration for educational authors. 

As a membership organisation, one of our prime purposes is to advocate for the protection of authors’ and illustrators’ rights and income.

In a short newsletter, it is not possible to canvas all the pros and cons of ‘fair use’. We’ve given you an introduction given that you’ll be hearing a whole lot more about fair use from us over the coming months.  We don’t want to ignore technological advancements; the changing ways in which we consume copyright works. But nor are we persuaded that fair use is the best reform and we definitely don’t want to embark on a slippery slope of erosion of creator’s rights.

What do you think?

In our further lobbying of government, we want to make sure we are representing your views. So what do you think? Do you think fair use is the right reform? Do you think fair use will affect your income? Remember, it won’t affect your royalties from book sales and it won’t affect royalties from translations of your book, or adaptations of your book into a stage play, television series or film.

However it might affect revenue from:

  • use of your work in secondary creative content,
  • your work being quoted or extracted,
  • your work being used in a non-consumptive way by tech companies, such as Google, in big data research. The development of machine learning typically requires vast amounts of data, sometimes including works protected by copyright,
  • your work being used for educational purposes.

We’d love to hear your feedback over the coming months as we continue to canvass views on this important policy issue.  

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