Jurisdiction - Australia
Australia – Update On Fair Use Copyright Proposal.

28 April, 2014




As recently reported the Australian Law Reform Commission’s (ALRC) final report on Copyright and the Digital Economy has been tabled into Parliament on 13 February 2014 by Senator George Brandis, Attorney-General and Minister for the Arts. Senator Brandis said that the ALRC inquiry was the most significant review of the Copyright Act since the Act came into operation in 1968. The ALRC recommended that a ‘fair use’ exception be introduced and existing ‘fair dealing’ exceptions in the Australian Copyright Act be repealed. The Government is yet to respond to the proposal, but it may be of significance that the report is being considered close upon the recent rejection of a ‘fair use’ regime in the UK.


Professor Jill McKeough Comments


Then Commissioner in charge of the inquiry, Professor Jill McKeough, recently spoke at a seminar organised by Herbert Smith Freehills, Sydney on 28 March 2014 about the ALRC Report. She explained that the main purpose of the inquiry was to examine whether current exceptions and statutory licences are adequate in the digital environment. Professor McKeough said that the ALRC recommended a fair use approach as it provides a flexible exception that can be applied to new technologies, encourage new public uses and stimulate competition and innovation. When tabling the report in Parliament, Senator Brandis described the recommendations as ‘controversial’, and in a formal address the following day said that “I remain to be persuaded that this [fair use exception] is the best direction for Australian law, but nevertheless I will bring an open and inquiring mind to the debate”. Senator Brandis did however commit to the Copyright Act becoming shorter, simpler, easier to understand, and technology neutral. He also said that regard would be given to the broader international context including the negotiation of free trade agreements with major trading partners.  We await to see whether the Government will commit to the principal change recommended, after completing its review.


UK Approach


It is interesting to note that in 2013, the UK Government ultimately rejected the adoption of a general fair use provision in considering whether the UK copyright exceptions were fit for the digital age. They cited the legal uncertainty which may be caused as to whether it had complied with its obligations under the Berne Convention and whether it would leave the UK out of step with other EU Member States. Instead, final draft regulations1 were published on 27 March 2014 which proposed amendments to the UK Copyright, Designs and Patents Act 1988 (CDPA) to exempt copyright infringement for personal copies for private use; quotation and parody; disability; research, education, libraries and archives; and public administration.


Australian Fair Dealing Exemptions


In comparison, Australia’s Copyright Act, provides prescriptive fair dealing exemptions for:


  • research or study,
  • criticism or review,
  • parody or satire,
  • reporting news, and
  • professional advice. 


The ALRC’s recommendation is to use the current exemptions and add new examples as ‘fairness factors’ to include: 


  • quotation,
  • non-commercial private use,
  • incidental or technical use,
  • library or archive use,
  • education, and 
  • access for people with a disability. 


In contrast to the UK, the factors would be illustrative only, non-exhaustive and non-determinative under a fair use regime. However, the ALRC recommends that if fair use is not accepted, that the current fair dealing regime should be expanded to adopt the fairness factors as prescribed exemptions. This would create strong similarities to the UK approach. Therefore it will be particularly important to watch the impact which the UK amendments have when they are expected to come into force on 1 June 2014.


End Notes:


  1. Changes to copyright law and guidance


herbert smith Freehills


For further information, please contact:


Joel Smith, Partner, Herbert Smith Freehills

[email protected]


Kristin Stammer, Partner, Herbert Smith Freehills

kristi[email protected]


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