February 19, 2014 | By Parker Higgins

Fair Use May Be Headed Down Under

The Australian government may soon introduce major copyright reforms, including the possibility of adding a fair use doctrine similar to that of the United States. Fair use was central among the 30 recommendations to come out of a nearly two-year study by the Australian Law Reform Commission published late last week. As the report states, "Australia is ready for, and needs, a fair use exception now."

A screenshot from the pro-fair-use Creationistas campaign.

Australia, like most Commonwealth countries, has a list of specific copyright exceptions known as "fair dealing." While fair use provides a general set of factors to consider when evaluating a use—and can thus accommodate new uses that haven't yet been imagined—fair dealing provisions in each country outline an exhaustive list of acceptable uses. Australia's fair dealing laws currently allow research or study, review or criticism, news reporting, legal advice, and since 2006, parody or satire.

That list doesn't include uses that are firmly considered fair in the U.S., from everyday activities like ripping a CD to play on your phone, to major undertakings like indexing web sites or books for a search engine. By contrast, Google's mass digitization of books to index in a search engine was determined to be a fair use in the U.S. last year. Under current law, a search engine or service like Google Books (which has been widely praised for its utility and benefit to the public) could not be started in Australia.

Strong fair use could greatly increase the flexibility of copyright law, and public interest groups are pushing hard for its introduction. It's been the subject of a popular online grassroots campaign called "Creationistas." Since the report was released, Dr. Sean Rintel, Chair of Electronic Frontiers Australia, issued a statement of support:

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.

And speaking to the Australian Financial Review, Australian Digital Alliance executive officer Trish Hepworth noted the technical lag that the current legal situation has imposed on the country: "There are long lists of very concrete examples of places where companies are choosing either to not host services in Australia or are being wary of innovating because of copyright."

Still, there are major hurdles to overcome before any fair use proposal can become law. For one thing, Attorney-General George Brandis—who was given a copy of the Commission recommendations in November but only published last week—has called the proposal "controversial" and said he's not convinced such an exception wouldn't "come at the expense of our creative industries."

Brandis has floated his own controversial copyright proposal last week: a three-strikes-style graduated response program for ISPs. That move comes after lobbying from the Australian Screen Association (ASA), of which the U.S. Motion Picture Association of America is a member. The ASA, which has spent AU$4 million on lobbying around copyright since 1998, has said it "fully supports" Brandis' proposal.

Australian copyright scholar Rebecca Giblin recently conducted an exhaustive study on the effect of graduated response programs like the one Brandis is proposing, and found "remarkably little evidence" that these programs were effective in reducing infringement, increasing legitimate markets, or improving access to knowledge and culture. The Copyright Alert System, a voluntary graduated response program in the United States, has been beset with problems since its inception in 2011.

Given this apparent mismatch between the public interest and government priorities, the risk of policy laundering from non-transparent and anti-democratic trade agreements like the Trans-Pacific Partnership (TPP) is immense—especially considering that leaked language in that agreement could limit countries' ability to enact robust fair use provisions.

It's been a big week for copyright reform in Australia. Hopefully the government takes advantage of this critical moment to pass legislation that fosters innovation and creativity, instead of simply catering to legacy business interests.


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