Another go for fair use in Australia

A report recommending the introduction of fair use in Australia was yesterday tabled in Parliament by the Attorney-General, Senator George Brandis[1]. “Copyright and the Digital Economy,” an inquiry by the Australian Law Reform Commission (ALRC), was tasked with examining whether the current copyright regime is adequately meeting the needs of the increasingly Internet-reliant Australian population. This is the second law reform report in just over a decade to recommend the introduction of fair use, and is more than 400 pages long.

Pirate Party Australia, a strong supporter of the introduction of fair use, was among the hundreds of individuals and organisations that made a submission to the ALRC[2], and was cited more than 10 times in the report. The fair use proposals would provide a generic, flexible exception that allows the unlicenced use of copyrighted material in certain circumstances where a court determines the use of a work (entirely or in part) is reasonable. Several countries have fair use or similar provisions, notably the United States and Israel, and fair use has been credited with providing a fertile environment for the growth of the modern Internet, being necessary for major search engines to function. Australia lacks the competitive edge of the United States in this area, putting the Australian digital economy at an enormous disadvantage.

“Over the past twenty or so years we have adopted many of the negative aspects of the United States’ copyright system, but with few of the safeguards the American laws have,” commented Mozart Olbrycht-Palmer, Deputy Secretary of Pirate Party Australia. “While we increased our copyright term to life plus seventy years via the Australia-US Free Trade Agreement in the early 2000s, we did not import fair use as a flexible exception for using copyrighted material without a licence. If the recommendations of the ALRC report are adopted, Australia will finally be taking positive steps towards copyright reform. These reforms are long overdue and go a long way to ensuring that Australia has copyright laws that genuinely reflect the needs of our society.”

Senator Scott Ludlam’s “Fair Go for Fair Use” Bill pre-empted the results of the ALRC inquiry, and is expected to be reintroduced to Parliament soon. Pirate Party Australia has been highly supportive of this Bill, and hopes that the ALRC report spurs Parliament into passing the much-needed legislation. The ALRC’s report notes the advantages of fair use, such as its flexibility and ability to promote the public interest and assist innovation, and that it aligns with reasonable consumer expectations while protecting rights holders’ markets and moral rights.

Another key recommendation of the ALRC report is the limiting of remedies for orphaned works. Copyright holders would, under the proposals, be limited in their ability to seek legal remedies if they fail continue asserting their rights. Currently a person who wants to use a work but who cannot identify or contact the copyright holder to discuss licencing arrangements risks being sued for copyright infringement if the copyright holder finds out, even though no significant effort has been made to assert ownership of the copyright.

“With these reforms there will be far more flexibility for new creators to use existing material that has seemingly been abandoned by copyright holders,” Mr Olbrycht-Palmer continued. “Limiting the remedies available will provide opportunities for people to use works the copyright holder does not appear to be exploiting, and thereby enriches our culture. It just isn’t fair for a copyright holder to turn up and start suing people because they failed to maintain their connection to the work.”

The Pirate Party may make further statements as it analyses the text of the report in greater detail. Representatives of Pirate Party Australia are today attending the Australian Digital Alliance “Fair use for the Future: A practical look at copyright reform” forum in Canberra[3], where Senator Brandis is giving the opening address.