By Simon Collinson

The Australian Law Reform Commission (ALRC) recently released a report proposing that a ‘fair use’ exception be introduced to Australian copyright law, moving from a closed list of exceptions to the open-ended fairness test which has characterized US copyright law since 1978.

Simon Collinson

Many in the publishing industry, both in Australia and overseas, have expressed significant concerns about the ALRC’s proposal. But what are the concerns and consider the proposal’s longer-term implications.

Australian law currently provides for a number of exceptions to copyright law, collectively known as ‘fair dealing’ rules. These rules relate to uses of copyright material for the following:

• Research or study
• Criticism or review
• Parody or satire
• Reporting news
• The provision of professional advice

Limited use of copyrighted material for any of these purposes is permitted without a licence, so long as it passes a ‘fairness test.’ The ALRC’s fair use proposal is aimed at simplifying this system by providing that any use which meets a four-step fairness test — almost identical to that in US law — will be protected.

Why Should the International Community Care?

Australia is a tiny publishing market, so why is this debate being followed so closely by the international publishing community? Part of the reason is that it may presage coming changes to the law in other jurisdictions: recent copyright reviews in the UK and Ireland have also expressed support for fair use. Fair use principles underpin the business models of companies like Google and Facebook, too, which may lead users of their services to favor their expanded applicability.

Publishers are also concerned that introducing fair use to a country they see as having no experience in the concept will be problematic. This argument deserves attention: Australian copyright law is built on a different foundation and aimed at different purposes than US law. However, Australian judges are becoming increasingly comfortable with citing international authorities, and they would doubtless draw upon the substantial body of US case law to establish Australian fair use principles.

Indeed, there is a trend towards increasing international uniformity within every area of the law, but it is particularly strong within copyright law – which may not be an altogether bad thing. These days, it isn’t just large publishers who have to worry about foreign countries’ laws: any publisher distributing ebooks on the global market is vulnerable to the legal quirks of far-flung territories. In this respect, a greater degree of international uniformity will reduce publishers’ transaction costs.

In fact, for foreign publishers accustomed to dealing with the US provision, fair use would offer greater certainty than current Australian legislation, which the ALRC has called ‘nearly indecipherable.’ The current ‘fair dealing’ exceptions can apply in unpredictable ways to different media, so it may be difficult for a publisher to judge whether – say – an interactive or electronic version of a title will be treated differently than its hardcover edition.

There is a parallel debate about whether making ‘transformative’ but fair uses of copyrighted works – such as Google Book Search – should be open to all, or just copyright holders. While transformative products based on publishers’ property, like Google Book Search, have the potential to increase discovery of backlist titles, many publishers see them as intrusions on their right to exploit their copyright. As the Australian Publishers’ Association pointed out in its submission to the ALRC review (PDF), discussion of ‘text mining’ and other transformative uses of copyrighted property tends to suggest that the works involved are somehow just a passive or natural resource – raw materials – from which others (including large, privately owned for-profit corporations) may extract value without sharing that value.

Ensuring publishers receive fair compensation for the value derived from transformative uses of their property should be a priority for the industry. However, prohibiting such uses outright is not an appropriate means to that end.

But Will a Provision for ‘Fair Use’ Pass in Australia?

In any case, Australia’s recently elected conservative government has indicated that it is unlikely to accept the ALRC’s proposals, so the risk of a sudden shift to fair use is small. At most, we may see an extension of the closed list of ‘fair dealing’ exceptions. This is a pattern Australia has followed before, with no small amount of success: in response to changes in technology, we introduced fair dealing provisions relating to ‘time shifting’ of TV and radio broadcasts, parody and satire, and reverse-engineering of computer programs.

The problem? In these cases, Australian legislative action lagged judicial updates to US fair use doctrine by between 7 and 22 years. Unless a new means of updating copyright law is implemented, one capable of reflecting emergent standards about use as they happen, there is a real risk that the gap between law and popular practice will increase popular disregard for copyright.

As an industry we are entitled to demand the strongest possible protection for our property. Australian publishers are particularly motivated to do so, since Australians’ disrespect for copyright is arguably the most intense in the world, as data on television piracy shows. As the popularity of ebooks grows in Australia, it is not difficult to picture this nightmarish scenario playing out with popular new releases.

In the long run, then, this disrespect for copyright has the potential to harm the industry far more than any judicially mediated fairness test could. Arguably, Australian — perhaps even global — adoption of fair use principles is now a matter of when rather than if. We should not be afraid, but we will need to be ready.

Simon Collinson is a bookseller and law graduate, and the online editor at The Lifted Brow. He lives in Adelaide, South Australia, and tweets at @Simon_Collinson.