Copyright and the digital economy — fourth time lucky for ‘fair use’?

By Paul Kallenbach and Emily Hawcroft

The Australian Law Reform Commission (ALRC) Final Report into Copyright and the Digital Economy is now publicly available, having been tabled in Parliament on 13 February 2014. The report was finalised after the ALRC considered more than 1,000 submissions and conducted more than 100 consultations with stakeholders.

At the heart of the ALRC’s recommendations is the introduction of a ‘fair use’ exception into the Copyright Act 1968 (Cth) to ‘create a more flexible, adaptive and relevant copyright environment’. Such a provision would involve the consideration of four non-exhaustive ‘fairness factors’ and would replace the patchwork of exceptions scattered throughout the Copyright Act. Eleven ‘illustrative purposes’ have been proposed by the ALRC to guide interpretation of the exception.

In the alternative, the ALRC recommends the expansion of the current fair-dealing exceptions in the Copyright Act. However, the ALRC’s view is that this will be less flexible and less suited to the current digital age than an open-ended fair-use exception, with many potentially ‘fair’ uses continuing to infringe copyright…

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