ALRC Inquiry into Copyright and the Digital Economy: Submission in response to Discussion Paper No. 79 (DP 79)

1. Outline of this Submission This submission argues that the ALRC was right in Proposal 4-1 of its Discussion Paper to call for the introduction of a fair use defence into Australian law. Given expansions to owner rights, the inclusion of ‘large and liberal’ exceptions in copyright legislation is essential to promote important public interest values associated with research and education, access to information, new authorship, fair competition, technological and scientific progress, and cultural, economic and social development. After much thought, we believe that an openended, general provision is the best way to achieve this state of affairs in Australia, and that the preferable (although not only) model is a new exception following the US language of fair use. We favour this approach because: 1. Fair use allows the law to respond to changing conditions without having to refer every detail back to the legislature. It lessens both the risk of legislative and of drafting errors. 2. Fair use can achieve better justice between individual parties than arbitrary rules, because of its fact-specific application. 3. Utilisation of fair use language will help connect any new Australian exception to well-understood and reasonably predictable factors. There is a rich body of jurisprudence from which guidance on ‘fairness’ can be found, including overseas case law, industry guidelines and codes of practice, and academic commentary. There are also steps the Commission and Government can take to signal their intentions in