Implementing Fair Dealing in Copyright Law: Lessons from Australia

Implementing Fair Dealing in Copyright Law: Lessons from Australia

In June 2012, the Australian Law Reform Commission received terms of reference for a review of free exceptions and statutory licences in the Copyright Act 1968 (Cth).[1] The Commission’s Issues Paper, released in August 2012, contained fifty-five questions on which responses were sought.[2] The bulk of these questions focused on empirical and normative matters regarding discrete classes of activity that are or might conceivably be the focus of an exception or statutory licence, such as cloud computing, private copying, activities by cultural institutions, activities with orphaned works, and educational uses.

However the Commission also asked whether Australia ought to enact a broad, flexible exception, and if so, whether this should replace or supplement existing purpose-specific exceptions.[3] This article is relevant primarily, although by no means exclusively, to these latter two questions. Its aim is to critique existing law reform debates in relation to exceptions, many of which present the choice between closed-ended and open-ended provisions as turning on a preference for certainty or flexibility. It uses standards and rules analysis to challenge this dichotomy, and thus help reframe debates in a way that is more nuanced and contextualised.

In presenting this analysis, this article engages not only with the broad question of whether a fair use-style provision would be a desirable addition to copyright law, a position that this author supports for Australia,[4] and which has been recommended by the ALRC in its Discussion Paper dated May 2013.[5] Rather, it is also interested in questions of implementation: of the precise form any new exception should take, and what additional measures might be necessary to mitigate the risk that a broad open-ended exception will never become a meaningful part of the copyright system. Much of its analysis is based on the utilisation of the US fair use doctrine as a template for reform,[6] although it must be acknowledged that other models are also possible.[7] Indeed, Australia itself has experience with so-called flexible drafting, most notably through bespoke exception, s 200AB.

Given it is peculiar to Australian law, a brief summary of s 200AB is useful at this point. Section 200AB is a relatively recent addition, having been introduced by the Copyright Amendment Act 2006 (Cth). It has been described as a “hybrid” exception due of its use of both closed-ended and open-ended drafting elements.[8] The main closed-ended aspect is that only nominated user groups may take the benefit of the provision: bodies administering a library or archives;[9] educational institutions; and users with a disability and those assisting such people. In contrast, the legislature did not attempt to particularise the uses to which s 200AB might apply, and indeed the application of the exception to any given use is to be judged by, inter alia, factors said to have the “same meaning” as Article 13 of TRIPS: the circumstances of the use must amount to a special case; the use must not conflict with a normal exploitation of the work or subject-matter; and the use must not unreasonably prejudice the legitimate interests of the owner of the copyright.[10]

As discussed in Part II, the introduction of s 200AB can be seen against the backdrop of long-standing interest in whether general exceptions can help fix problems thought to be associated with the prevailing drafting model for exceptions across the British Commonwealth: closed-ended and often highly detailed provisions.[11] This debate was revitalised in Australia during the implementation of the US-Australia Free Trade Agreement,[12] and indeed s 200AB was identified as bringing to Australia some of the benefits of fair use.[13] However this article uses the post-FTA developments to illustrate broader themes about the propositions and analytical techniques that tend to characterise debates about the drafting of exceptions. It argues that these debates frequently rest on oversimplified claims about the respective merits of different styles of drafting. In Part III it uses standards and rules analysis to reveal complexities that are often glossed over, noting that the operation of any statutory provision depends not only on its language, but its complexity, the broader statutory context, and the interpretative practices of judges and those regulated by law. It continues these themes in Part IV by using Australian experiences with s 200AB as a case study about the implementation of open-ended exceptions into copyright law.

The particular empirical work described in Part IV is interview-based fieldwork conducted with leading Australian cultural institutions in 2012-2013.[14] This fieldwork suggests that s 200AB has failed to become a meaningful part of institutional copyright practices, and that this state of affairs shows little prospects for change. One question that arises from this research is whether a similarly restrictive interpretation is likely for all flexible exceptions, such that an Australian fair use doctrine would suffer a similar fate. However it is argued that the issues when s 200AB is viewed through the lens of standards and rules analysis, it can be seen that its muted reception is an entirely predictable consequence of the way that provision is drafted. The failures of s 200AB should not, therefore, be seen as a rejection of flexible exceptions per se. Indeed other behaviours and practices suggest there is much potential for fair use to become a workable exception for Australian cultural institutions. These lessons about the failures of s 200AB are relevant not only to Australia, but to other jurisdictions dealing with similar questions about the reform of copyright exceptions.

This is an excerpt from a paper by Emily Hudson, Career Development Fellow in Intellectual Property Law at the University of Oxford and Acting Director of the Oxford Intellectual Property Research Centre. The full paper will appear in the next edition of the Intellectual Property Journal (IPJ).

[1] Terms of Reference, Copyright and the Digital Economy (Australian Law Reform Commission, 29 June 2012),

[2] Australian Law Reform Commission, Copyright and the Digital Economy, Issues Paper 42, August 2012 (“ALRC, Issues Paper”).

[3] Ibid [271]-[298], questions 52 and 53.

[4] See the two submissions made by Robert Burrell, Michael Handler, Emily Hudson and Kimberlee Weatherall to the Commission: Submission in response to Issues Paper No. 42 (14 December 2012) and Submission in response to Discussion Paper No. 79 (31 July 2013),

[5] Australian Law Reform Commission, Copyright and the Digital Economy: Discussion Paper (DP 79, May 2013) (“ALRC, Discussion Paper”). The Commission’s final report is due to be released in late November 2013.

[6] See Copyright Act of 1976 (US), §107. That provision states that a fair use of a copyrighted work is not an infringement of copyright. It also sets out a non-exhaustive list of acts that might constitute a fair use (“criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship and research”), and identifies four factors that shall guide the fair use analysis (the purpose and character of the use; the nature of the copyright work; the amount and substantiality of the portion used; and market effect). The language of §107 does not seem to preclude the consideration of other fairness factors, although empirical analysis suggests that, in practice, courts tend to limit themselves to those articulated in the statute: Barton Beebe, ‘An Empirical Study of U.S. Copyright Fair Use Options, 1978-2005’ (2008) 156 University of Pennsylvania Law Review 549, 561-564.

[7] See, eg, Copyright Act 1987 (Singapore), s 35(1) (open-ended fair dealing exception). In amendments passed in 2012, Canada expanded s 29 of the Copyright Act (RS 1985, c C-42) so that in addition to research and private study, dealings for the purposes of education, parody and satire are also covered.

[8] Melissa de Zwart, ‘The Copyright Amendment Act 2006: the new copyright exceptions’ (2007) 25(1) Copyright Reporter 4, 12.

[9] The term archives is defined broadly in the Copyright Act to extend to the collections of bodies such as museums and galleries: Copyright Act 1968 (Cth), ss 10(1), 10(4).

[10] Copyright Act 1968 (Cth), ss 200AB(1)(a),(c),(d), (7).

[11] This has been referred to by Burrell as the “fair use panacea”: Robert Burrell, ‘Reining in copyright law: is fair use the answer?’ [2001] IPQ 361; Robert Burrell and Allison Coleman, Copyright Exceptions: The Digital Impact (Cambridge University Press, 2005).

[12] Discussed in Robert Burrell and Kimberlee Weatherall, ‘Exporting Controversy? Reactions to the Copyright Provisions of the U.S.-Australia Free Trade Agreement: Lessons for U.S. Trade Policy’ [2008] 2 University of Illinois Journal of Law, Technology and Policy 259.

[13] As articulated by the Attorney-General in his second reading speech for the Copyright Amendment Bill 2006: see Commonwealth, Parliamentary Debates, House of Representatives, 19 October 2006 (Philip Ruddock).

[14] A description of the methodology is contained in Part IV. The fieldwork described in this article utilises very similar techniques to previous empirical work undertaken by the author: see especially Emily Hudson and Andrew T Kenyon, ‘Digital Access: The Impact of Copyright on Digitisation Practices in Australian Museums, Galleries, Libraries and Archives’ (2007) 30 UNSW Law Journal 12; Emily Hudson, Copyright Exceptions: The Experiences of Cultural Institutions in the United States, Canada and Australia (PhD thesis, Law, University of Melbourne, 2011) (“Hudson, Exceptions Thesis”).