Digital copyright review recommends 'controversial' fair use provision

Australian copyright law should have a flexible and technology-neutral fair use provision to prevent tech companies and others being caught up for copyright infringement, the Australian Law Reform Commission (ALRC) has recommended.

The recommendation came in the commission's long-awaited report into the Copyright Act that was handed to the government close to three months ago. The review was called in 2012 under the former Labor government to look specifically at whether the Act needs to be updated to cope with the changes in technology since it was first implemented.

The ALRC argued that Australia should include a fair use defence in the Copyright Act, similar to that available in the United States, which allows people to argue a fairness defence when accused of copyright infringement.

The exception would contain an express statement that fair use is not copyright infringement, and a non-exhaustive list of fairness factors, such as what the purpose of the use was, the nature of the material, the amount of the material used, and the effect on the value of the material.

Purposes for using the material under fair use would be for research or study, criticism or review, parody or satire, news reporting, quotation, professional advices, non-commercial private use, incidental or technical use, library or archive, education, and for access for people with disability.

The existing fair dealing clauses in the Copyright Act would be repealed to allow for the fair use exemption.

The non-commercial private use and technical use clauses would in particular target uses of copyright in the technology sector, such as for caching of data, cloud computing, or the digital recording or transfer of content from one medium to another. Google and Yahoo7 are both quoted in the report stating that they would not be able to offer the services they can if they had started in Australia under the existing copyright law.

Australian Law Reform Commissioner Jill McKeough said that fair use would be critical for Australia's digital economy.

"Fair use is a flexible exception that can be applied to new technologies and services, which is crucial in the digital economy," she said in a statement.

"Fair use can facilitate the public interest in accessing material, encourage new productive uses, and stimulate competition and innovation. But fair use also protects the interests of writers, musicians, film-makers, publishers, and other rights holders."

The government has not yet responded to the recommendations made in the report, but Attorney-General George Brandis told parliament that a fair use exception is "a controversial proposal", and indicated that the government would side with content owners in seeking not to diminish their rights.

"In considering the recommendations, we will be particularly concerned to ensure and we will approach the consideration of the report with the view that no prejudice be caused to the interests of rights holders and creators," he said.

"Australia's creative industries are not only a vital part of our culture; they are a thriving sector of our economy. Just like any other workers in our economy, they are entitled to the fruit of their efforts."

He said that the rights of content owners didn't change because of the emergence of new media and platforms.

"In the changing digital world, we must always look for opportunities to reform the law and make sure it is contemporary, but in reviewing intellectual property laws, the government has no intention of diminishing the rights of content creators to benefit from the fruits of their endeavours," he said.

Brandis is expected to expand on his views around copyright reform when he gives a speech at the Australian Digital Alliance Forum in Canberra tomorrow morning.

Although the terms of reference specifically directed the commission not to duplicate work being undertaken on unauthorised distribution of copyright materials using peer-to-peer networks, Brandis has indicated that the government's response to the review will include a proposal to crack down on online copyright infringement.