What's the deal with "fair use"?

What's the deal with


By Elmo Keep

You may have heard or read recently about a concept in copyright law called “fair use”. If you haven’t, you probably will soon, as the Australian Productivity Commission is currently deliberating on this and other changes to our Intellectual Property Arrangements. Its draft report will be delivered in late April.

But what exactly is “fair use”, and how does it differ from Australia’s current copyright arrangements? Essentially, it comes down to the definition of our copyright exceptions.

Strong copyright laws exist for a reason: to protect how artists and creators make a living from their work. The US Supreme Court put it this way in 1975: “Copyright law exists to stimulate artistic creativity for the general public good.” That public good being that all lives are enriched by a vibrant cultural sphere. The more music, film, television, theatre, photography, fine art, and literature there is in the world, the stronger the public access to that culture.

Copyright law was enshrined to ensure that artists and creators would be able to profit from their labour sufficiently in order to keep producing creative work. And that’s what creative works are: they’re labour. No matter how passionately artists might feel about their craft, that doesn’t mean they don’t need the same financial compensation as any other labourer in any other industry. Copyright allows creators to retain the legal right to control the way their work is used and to financially benefit from any use of their work by others.

Of course, there are exceptions to those rights. Copyright exceptions differ from country to country but in Australia, ours are called “fair dealing”.

Australia’s fair dealing exceptions allow reuse of copyright-protected works for the purposes of criticism or review, parody or satire, news reporting, some private use and research or study. This is how film reviewers can show excerpts of the movies they’re criticising, or how a show like the Gruen Transfer can screen the advertisements the panelists then make commentary on. Under fair dealing you can make private copies of media you own from one format to another, like ripping a CD or DVD to digital format. A detailed list of all the exceptions including news reporting and research and scholarship can be found at As it currently stands, fair dealing allows for a very wide range of uses of copyrighted works.

However, the Australian Productivity Commission is currently considering replacing “fair dealing” with a set of US-style provisions called “fair use”. In the US, fair use legislation does not define what is “fair”. Rather, “fairness” is determined on a case-by-case basis. Courts weigh four fairness factors.

• purpose and character of the use;
• nature of the copyright work;
• amount and substantiality of the portion used in relation to the copyright work as a whole;
• effect of the use upon the potential market for work of value of the work.

Sound a bit vague? That’s because it is.

Unlike our fixed set of fair dealing exceptions, these US-style fair use provisions are non-exhaustive and can be applied far more broadly. In fact, they have been. The most controversial example of just how broad fair use provisions can be is the US Google Books case. Google scanned 20 million books without seeking the permission of the copyright holders or paying any due licensing fees. Google did not seek permission or cooperation from authors and initially served ads against the digitised books without including links to where they could be purchased – two concessions which since have had to be made.

Google argued that its book-search program offers great public benefits and therefore the copying should be protected under the US legal doctrine of fair use. However, as Google is a for-profit corporation, its interest is making money. If it had only ever been interested in expanding the public good, then Google was free to incorporate its book project as a non-profit entity from the beginning – the company did not choose that option.

A class action seeking fair compensation for authors ensued. The case was in litigation for ten years and the courts found in favor of Google: that scanning physical books to digital format and creating a searchable database met the fair use “fairness tests” and did not infringe copyright. This decision is still extremely controversial and the Authors Guild is currently petitioning the US Supreme Court to hear the case.

This is a notable example of how broad and open to interpretation the fair use provisions can be. When weighing potential losses to artists over the public access to culture, courts don’t always come down in favor of artists. And the cost of litigation is one that artists are often unable to bear, especially in suits against powerful corporate interests. A PwC audit into the introduction of fair use in Australia forecasts the resulting increase in litigation costs to producers and artists at $133m a year.

Australia’s publishing market and its wider creative industries are small. This means the margins in which creative endeavors can be profitable and sustainable are also very narrow. In the face of aggressive low pricing from international vendors and the increasing dissolution of territories in a global market, strong copyright law is vital to protect authors’ income and the sustainability of the industry as a whole. A recent Macquarie University survey has shown that Australian authors’ creative income is now averaging around $13,000 a year, down from $23,000 a decade previously. To have to pay for costly litigation to protect their work from infringement on top of this is something that most artists cannot afford. To side with them in protecting their living isn’t being putative or greedy or against innovation, it’s just being fair.

About the Author:

Elmo Keep is an Australian writer and journalist in New York.

Tags: Fair use

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