7504LAW Written Assessment 1 PDF

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7504LAW – Written Assessment 1

Background to Fair Use

The submission of a recommendation to the Productivity Commission Enquiry was made on behalf of the company, opposing the recommendation that Australia adopts the defence of fair use. Fair use was first recognised within section 107 of the United States Copyright Act 19761, as a defence against any copyright infringement. The implementation of this defence within Australia has raised several conflicting views.

Between 1998 and 2016, eight enquiries examined the introduction of the fair use defence within Australia, to allow copyright material to be used only if it meets one of four specific purposes2. This change would allow copyright material to be used without the consent of the original owner3. Despite the different recommendations that have been made to the Productivity Commission4 to introduce a U.S. style fair use defence, the current fair dealings defence within the Copyright Act 19685, sees the appropriate use of copyright material for specific purposes of study and research, criticism and review, reporting news and seeking professional advice.

Analysis of Application of Copyright Law Despite the enquiries made to adopt the defence of fair use, the current Copyright Act6 recognises fair dealing for specific purposes. Original material and work are considered an exclusive right7, and subsist with the owner of the material, when the work has been originally published within Australia, and the author was a qualified person at the time of publication8. This right does extend to unpublished material, if the author is considered a

1 Copyright Act 1976 (US) s 107. 2 Stuart, Andrew, Intellectual Property In Australia (LexisNexis, 6th ed, 2017). 3 Australian Law Reform Commission, Copyright And The Digital Economy (Australian Government, 2013) . 4 Burrell, Robert and Allison Coleman, Copyright Exceptions (Cambridge Univ. Press, 2009).

5 Copyright Act 1968 (Cth). 6 Ibid. 7 Copyright Act 1968 (Cth), s31. 8 Copyright Act 1968 (Cth), s32(2).

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qualified person9. The rights of an owner of copyright material normally encompass the reproduction, performance and adaptation of their work10, which is an exclusive right for the life of the owner, with an additional 70 years11.

The use of fair dealings as a defence to a copyright infringement is embedded within the Copyright Act12, and are applicable in situations of research and study, criticism or review, parody or satire, reporting news and judicial proceedings. A fair dealing or adaptation of material for the use of research or study is not considered a copyright infringement13, as long as the current study and research are for an approved course14. An extensive discussion of fair dealings for the use of research and study took place in De Garis v Neville Jeffress Pidler15, and determined that the use of material for an acquisition of knowledge, and a systematic enquiry into a subject, is not considered a copyright infringement. Beaumount J in De Garis v Neville Jeffress Pidler16, also held that the application of criticism or review as a defence of a copyright infringement is the process and results of the critical application of mental faculties17 within a publication. The media types of a criticism publication were also discussed, as the reporting of news involves criticism and review18, however, this type of publication must be for an informative purpose, rather than entertainment19. The use of material within a satire or parody can be a defence to a copyright infringement20, where the imitation of work has been blurred at the edges by everyday use21. A litigant and a practitioner in the course of a proceeding can use materials to provide advice22, without infringing current copyright laws23. The current application of fair dealings, as a copyright infringement defence, encompasses a range of specific situations, suggesting that the adoption of fair use within Australia will be invalid.

9 Copyright Act 1968 (Cth), s32(1). 10 Stuart, Andrew, Intellectual Property In Australia (LexisNexis, 6th ed, 2017). 11 Copyright Act 1968 (Cth), s33. 12 Copyright Act 1968 (Cth). 13 Copyright Act 1968 (Cth), s40(1). 14 Copyright Act 1968 (Cth), s40(1A). 15 De Garis v Neville Jeffress Pidler Pty Ltd (1990) 18 IPR 292. 16 De Garis v Neville Jeffress Pidler Pty Ltd (1990) 18 IPR 292. 17 Ibid. 18 Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39. 19 TCN Chanel Nine Pty Ltd v Network Ten Pty Ltd (2002) 55 IPR 112. 20 Copyright Act 1968 (Cth), s41A. 21 TCN Chanel Nine Pty Ltd v Network Ten Pty Ltd (2001) 50 IPR 335. 22 Copyright Act 1968 (Cth), s43. 23 Copyright Act 1968 (Cth).

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Outline of Merits The current analysis of copyright law24 suggests that while there isn't a defence for fair use to the extent of the U.S., the application of fair dealings for specific purposes25, is adequate in justifying a reproduction of copyright materials. However, the consideration of the Australian Law Reform Commission’s view in their report should be recognised26, as they suggest that the inflexibility and the closed-ended interpretation of fair dealings, isn't suitable for the advancing digital age and that many uses that are considered fair, will be infringed 27, unless a fair use defence was adopted. On the other hand, the Australian Copyright Agency strongly defends the current fair dealings, recognising that the implementation of fair use will result in less material being published, with an estimated $1 billion GDP loss28. The implementation of fair use will unfairly put authors and creators in a situation where they do not have any control over their materials, and their ideas are open for unlimited reproduction29. The suggestion of the implementation of fair use exception is needless, as the current fair dealings cover a range of incidents.

Recommendations for Moving Forward The underlying effect on the Australian economy, and the restriction of ownership rights, promotes the ineffectiveness of the fair use defence, solidifying the perception that Australia veers away from this U.S. style consideration. The view that the inflexibility of the current fair dealings defence fails to encompass the advancing digital age and social expectations, is an issue that should be recognised. The Australian Law Reform Commission recognised the current divide and provided an alternative approach, that is to overhaul the existing fair 24 Copyright Act 1968 (Cth). 25 Ibid. 26 Australian Law Reform Commission, Copyright And The Digital Economy (Australian Government, 2013) < https://www.alrc.gov.au/publication/copyright-and-the-digital-economy-alrc-report-122/6-the-new-fair-dealing-exception/advantages-offair-use-over-fair-dealing/>. 27 Ibid.

28 Copyright Agency, "Free Is Not Fair – Why Australians Should Reject Fair Use", Copyright Agency (Webpage, 2017) . 29 Ibid. 3

dealing defence to bring them into line with the current technology and social expectations 30. This recommendation will still be effective in providing authors’ ownership of their materials, but consider an updated approach to social standards. It is recommended that the submission to the Productivity Commission Enquiry remains opposed to the implementation of a fair use defence, with an additional recommendation that there should be an overhaul of the current fair dealings defence, to ensure that there is an incorporation of current technology and social standards. This recommendation will ensure that a material's right still subsists with the author, but recognises that any fair dealings of the material through technology are not recognised as an infringement in the course of its fair dealings.

30 Jonas Holland, "Australian Copyright Law Review Recommends 'Fair Use' Defence" [2014] AJ Park Intellectual Property < https://www.lexology.com/library/detail.aspx?g=9c94f09a-2804-4d45-88f0-39a191b80484>.

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Bibliography A Articles/Books/Reports Australian Law Reform Commission, Copyright And The Digital Economy (Australian Government, 2013) < https://www.alrc.gov.au/publication/copyright-and-the-digital-economy-alrc-report-122/6the-new-fair-dealing-exception/advantages-of-fair-use-over-fair-dealing/>. Burrell, Robert and Allison Coleman, Copyright Exceptions (Cambridge Univ. Press, 2009). Jonas Holland, "Australian Copyright Law Review Recommends 'Fair Use' Defence" [2014] AJ Park Intellectual Property < https://www.lexology.com/library/detail.aspx?g=9c94f09a-2804-4d45-88f039a191b80484>. Stuart, Andrew, Intellectual Property In Australia (LexisNexis, 6th ed, 2017).

B Cases Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39. De Garis v Neville Jeffress Pidler Pty Ltd (1990) 18 IPR 292. TCN Chanel Nine Pty Ltd v Network Ten Pty Ltd (2001) 50 IPR 335. TCN Chanel Nine Pty Ltd v Network Ten Pty Ltd (2002) 55 IPR 112.

C Legislation Copyright Act 1968 (Cth) Copyright Act 1976 (US)

D Other Australian Law Reform Commission, Copyright And The Digital Economy (Australian Government, 2013) .

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Burrell, Robert and Allison Coleman, Copyright Exceptions (Cambridge Univ. Press, 2009). Copyright Agency, "Free Is Not Fair – Why Australians Should Reject Fair Use", Copyright Agency (Webpage, 2017) .

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