Digital rights bodies back ALRC’s Fair Use call



news A cluster of Australia’s most high-profile digital rights organisations, including Electronic Frontiers Australia, CHOICE and the Pirate Party have backed the Australian Law Reform Commission’s strong call for so-called “Fair Use” provisions to be introduced into the Copyright Act.

On 29 June 2012, the previous Labor Administration asked the ALRC to consider whether exceptions and statutory licences under the ageing Copyright Act 1968 were adequate and appropriate in the new digital environment of the Internet and whether further exceptions should be recommended. The resultant review has been published online in full this week in PDF format. It is an extremely lengthy document — consisting of some 478 pages — and it is likely that it will take many months for Australia’s legal and regulatory community to process its recommendations.

However, of great interest to those interested in digital rights in Australia will be the ALRC’s recommendation of a fair use exception to the Copyright Act. ‘Fair use’ is a doctrine commonly used in other international jurisdictions to refer to use of copyrighted works that do not require explicit consent of the copyright holder, while still recognising the rightsholder’s rights. Fair use is often used to allow criticism of a work, reporting about a work, teaching or scholarly research.

In its report, the ALRC wrote that it “recommends the introduction of fair use” for a number of reasons, including the ability of the doctrine to facilitate public interest in accessing material, encouraging new productive uses and stimulating competition and innovation.

In a statement released yesterday, the EFA called on both the Government and the Opposition to support the introduction of fair use provisions.

The organisation stated: “Australia’s current Copyright Act is no longer fit for purpose in an environment of increasingly rapid innovations in technology and service delivery. The current law is out-dated and its inherent inflexibility casts uncertainty on the legitimacy of basic internet functions like caching and searching, cloud computing, mash-ups and remixes, data mining and the personal use of content, particularly within the social media context.”

EFA Chair, Dr Sean Rintel said today, “EFA believes that the introduction of a broad fair use exception into Australian copyright law is a critical and long-overdue element in providing a strong, relevant and flexible copyright regime that will serve Australia well into the future. A broad fair use exception will enable greater innovation and creativity, will promote a higher degree of respect for copyright among Australian consumers and will remove a number of significant impediments to the development of a vibrant and competitive Australian cloud services industry.”

CHOICE said it had been “obvious for many years” that Australian copyright law was “broken”.

According to the organisation, Australia’s current laws address specific technologies, such as ‘videotapes’, when stating what consumers can and can’t do with content they have bought. Under fair use, which has been recommended by the ALRC, the law will apply broad principles instead, creating future-proof and flexible exemptions.

“If you set out a design a law that consumers would inevitably and unknowingly break, in their millions, every day, the Australian Copyright Act would be what you would end up with,” said CHOICE CEO Alan Kirkland. “Despite being updated in 2006, our current copyright law fails to even address basic technologies like DVDs, let alone emerging areas such as cloud computing.”

“If we as a nation are serious about allowing our consumers to benefit from the latest technologies, and allowing our businesses to fully engage with the global and increasingly digital economy, then we need fair use. Fair use helps create a more collaborative, innovative society for the benefit of consumers and artists alike. It is no accident that the United States’ fair use system has seen the rise of both Hollywood and Silicon Valley.”

The Pirate Party also backed the introduction of fair use provisions into Australia’s copyright laws, pointing out that the ALRC’s report was the second in just over a decade to recommend the introduction of fair use.

“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.”

Shadow Attorney-General Mark Dreyfus has issued a statement welcoming the publication of the report, but has not yet responded to questions about Labor’s policy on the introduction of fair use laws. The Greens have not yet commented on the issue, but are believed to be in favour of the suggested fair use provisions.


  1. Renai,

    Just FYI: ” ‘Fair use’ is a doctrine commonly used in other international jurisdictions”. It’s actually only applied in 5 jurisdictions world wide. US, Singapore, South Korea, Israel and Philippines. 4 are signatories to Berne convention (out of 166 member states), and the other 4 (besides the US) are more restrictive in it’s application. To say that it is commonly used when it represents little more than 2% of Berne Convention countries is a tad off the mark…

    Secondly, the danger of recommending importing wholesale sections of overseas legislations without considering the shole legislative regime is that the government of the day may choose to import other components of the legislation that are seen as… less favourable. Statutory damages anyone?

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