what is ‘fair use’?
‘Fair use’ is an American legal principle that has enabled large enterprises in the US to use copyright material for free. Under Australian law, enterprises pay Australian writers, artists, creators, photographers and publishers to use their work, unless it’s for public interest purposes outlined in the legislation, such as reporting news or parody.
A minority of industry players want to change that, and the Productivity Commission in Canberra recently made recommendations to introduce fair use in Australia.
RESPONSES TO THE PC REPORT
- Copyright Agency: Productivity Commission’s recommendations attack Australian creators
- BooksCreate: Book Industry Calls on Government to Write Off Productivity Commission Report
- Screen Producers Australia: Screen Producers Australia outraged at the Productivity Commission’s final report on IP Arrangements
- APRA AMCOS: The Productivity Commission has lost its way on IP policy, new recommendations threaten Australia’s creative industries
- Screenrights: Productivity Commission on Intellectual Property is a Threat to Australian Content
- Australian Digital Alliance:Productivity Commission recommends a fair copyright system for all Australians
- Universities Australia: Universities Australia backs calls for fairer copyright laws
- The Greens: PC report into copyright changes must not be the Trojan horse for further attacks on Australian arts
- The Copyright Council: PC Report recommendations threaten Australia’s creative economy
What happens next?
The Government released the Productivity Commission’s final report on 20 December 2016. The Government has invited comments on the final report by 14 February 2017, and has said it will respond to the report by mid 2017.
Australia’s copyright system
In Australia, we already have a clever, value-for-money educational copying scheme which means school, university and college teachers can copy and share any material they want with their students for a fair payment to creators. This equates to about $17 per school student per year or about $30 per tertiary student, paid for by institutions, not individuals.
This fair payment is returned to publishers, authors, visual artists and content creators, which in turn helps generate new educational content and products for Australian teachers and students. This system does not exist in the US and means that most publishers, writers and authors are not being paid when their material is copied for students in universities.
What exceptions does Australia already have?
Australia has a number of simple rules, or exceptions, about when you can use material that is subject to copyright without having to ask permission.
The main ones are for:
- news reporting
- criticism or review
- parody or satire
- personal research or study
- people with disabilities
- copying by libraries and more (such as legal advice).
Free is not fair – why you should reject fair use
If fair use was introduced into Australia, there would be less Australian content on our screens, on our bookshelves and in our schools and universities. PwC has estimated that introducing fair use in Australia could result in a loss of GDP of more than $1 billion.
Would creators prefer to spend time creating, or going to court?
One of the consequences of exceptions like US fair use is uncertainty and unpredictability for content creators.
The filing of copyright court cases in the US is vastly greater per capita than in Australia, and the fair use exception is raised in a significant and growing proportion of them. An analysis of copyright cases filed in the US in 2014 alone showed a defence of ‘fair use’ was raised in 43% of the defended cases. By contrast, an analysis of reported cases of the Australian Federal Court between 2006 and 2012 showed that 94 involved copyright, but only four of those referred to a copyright exception as a key issue.
Adopting a fair use doctrine in Australia could lead to universities and schools refusing to pay licence fees for the vast amount of copyright material they now have access to. This would have an adverse effect on the production of Australian educational resources, opening the door for materials dominated by US and British creators.
Canada – a case of what not to do
This situation occurred in Canada and has had an immediate and profound effect on the production of Canadian-specific material for schools and universities. Critically, schools and universities will start to rely on US and British educational resources.
A PwC report has estimated the loss of many millions in royalty payments to content producers, plus job losses and the closure or winding back of multiple publishers.
High costs with no evidence of benefits
Evidence from Canada has informed a report by professional services firm, PwC Australia, in February 2016, which reviewed the costs and benefits of changing to ‘fair use’.
The PwC report shows:
- Australian-produced works will decline – with a $1b+ loss to GDP
- Litigation will rise permanently
- Fair Use could undermine Australia’s effective and fit-for-purpose licensing system, providing teachers with unfettered access to global content for less than the cost of a book
How is the Copyright Agency working to achieve sensible reform?
Australia’s copyright system is world-leading and has proven it can evolve to encompass developments in technology, business practices and consumer behaviour.
There are sensible reforms to the Copyright Act that are already well advanced in an unprecedented collaboration between rights holders, libraries and education institutions.
At the invitation of government, the education sector, together with the Copyright Agency and Screenrights, developed a joint proposal for simplification of the statutory licence for education, and the government has released a draft bill that would implement that joint proposal. This will create solutions that benefit teachers, libraries and people with disabilities, and are also fair to content creators.
Other sensible developments would include the introduction of a regulatory framework for ‘extended collective licensing’ (ECL) to enable better licensing solutions. ECL originated in Scandinavia, and has been introduced in the UK, France and Germany. It’s also recommended by the US Copyright Office as a mechanism for enabling mass digitisation, which is preferable to the outcome of the decade-long Google books litigation.