The Fight for Fair Use in Australia: Copyright Law in an Age of Cloud Computing

Matthew Rimmer

Fair Use Week has celebrated the evolution and development of the defence of fair use under copyright law in the United States. As Krista Cox noted, ‘As a flexible doctrine, fair use can adapt to evolving technologies and new situations that may arise, and its long history demonstrates its importance in promoting access to information, future innovation, and creativity.’ While the defence of fair use has flourished in the United States, the adoption of the defence of fair use in other jurisdictions has often been stymied. Professor Peter Jaszi has reflected: ‘We can only wonder (with some bemusement) why some of our most important foreign competitors, like the European Union, haven’t figured out that fair use is, to a great extent, the “secret sauce” of U.S. cultural competitiveness.’ Jurisdictions such as Australia have been at a dismal disadvantage, because they lack the freedoms and flexibilities of the defence of fair use.

1. The Australian Law Reform Commission

There has been much angst that Australia has adopted features of United States copyright law — such as aspects of the Sonny Bono Copyright Term Extension Act 1998 (US) and the Digital Millennium Copyright Act 1998 (US) — without the countervailing benefits of a flexible defence of fair use. As Adam Turnerlamented, ‘Why did we gain the restrictions of US copyright law but not the rights?’

As it stands, Australian copyright law does not provide for a general defence of fair use. Instead, Australian copyright law has purpose-specific defences of fair dealing for criticism and review, research and study, reporting the news, use in judicial proceedings, and parody and satire.

In February 2014, the Australian Law Reform Commission led by Professor Jill McKeough released its groundbreaking report on Copyright and the Digital Economy. The two-year-long law reform project was an independent, fair-minded piece of research, showing wide community consultation and industrious research into the case law and the literature on the topic. The report recommended a number of simplifications and revisions to the Australian copyright regime, so that it would be better suited for an age of broadband and cloud computing.

The report recommended that ‘The Copyright Act 1968 (Cth) should provide an exception for fair use.’ The Commission emphasized:

Fair use also facilitates the public interest in accessing material, encouraging new productive uses, and stimulating competition and innovation. Fair use can be applied to a greater range of new technologies and uses than Australia’s existing exceptions. A technology-neutral open standard such as fair use has the agility to respond to future and unanticipated technologies and business and consumer practices. With fair use, businesses and consumers will develop an understanding of what sort of uses are fair and therefore permissible, and will not need to wait for the legislature to determine the appropriate scope of copyright exceptions.

The Commission suggested that the report would make Australia attractive to entrepreneurs, inventors, and start-up companies working in the field of information technology: ‘Of course, innovation depends on much more than copyright law, but fair use would make Australia a more attractive market for technology investment and innovation.’ In particular, a defence of fair use would be of benefit and assistance to search engines, social networks, cloud computing, and 3D printing.

The Commission stressed: ‘Fair use promotes what have been called ‘transformative’ uses — using copyright material for a different purpose than the use for which the material was created. This is a powerful and flexible feature of fair use’. The Commission noted that the defence ‘can allow the unlicensed use of copyright material for such purposes as criticism and review, parody and satire, reporting the news and quotation.’ The Commission recognised: ‘Many of these uses not only have public benefits, but they generally do not harm rights holders’ markets, and sometimes even enlarge them’. The Kookaburra case [PDF] has highlighted limitations of current Australia copyright law — where Men at Work’s quotation of a Girl Guides song was considered to be a copyright infringement.

Moreover, the Commission observed that the defence of fair use would also address a range of other copyright uses: ‘Fair use is also an appropriate tool to assess whether other transformative uses should be permitted without a licence, such as data mining and text mining, caching, indexing and other technical functions, access for people with disability, and a range of other innovative uses.’ The Commission stressed: ‘Copyright must leave ‘breathing room’ for new materials and productive uses that make use of other copyright material.’

In an age of Mickey Mouse copyright term extensions, the defence of fair use would be particularly helpful in dealing with the problem of orphan works — where the owner is lost or cannot be located. The Australian Law Reform Commission ‘considers reforms that would facilitate the use of orphan works to enable their beneficial uses to be captured in the digital economy, without creating harm to the copyright holder.’

The issue of disability discrimination has been a pernicious problem in Australian copyright law. Professor Ron McCallum from Sydney Law School has eloquently discussed the difficulties of access to cultural works for those with disabilities in Australia:

The Australian Law Reform Commission recommended ‘that access for people with disability should be an illustrative purpose listed in the fair use exception.’ Such a proposal is to be welcomed, particularly in light of the new World Intellectual Property Organization Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled 2013.

The Australian Law Reform Commission also counselled against confusing or conflating fair use with copyright infringement: ‘Piracy will be no less criminal if fair use is enacted.’ The Commission commented: ‘If a person is prepared to infringe copyright laws by illegally sharing films with strangers over peer-to-peer networks, that person will presumably have little regard to laws that prohibit digital-to-digital copying of films for purely private use.’ The Commission concluded that their proposals would not undermine the rights of copyright owners.

2. The Coalition Government

The Attorney-General of the Coalition Government — George Brandis — has been hostile to the proposals of the Australian Law Reform Commission with respect to copyright exceptions. Tabling the report, the Attorney-General observed: ‘These recommendations will no doubt be controversial and the Government will give them very careful consideration.’ He stressed: ‘We are particularly concerned to ensure that no prejudice is caused to the interests of rights holders and creators, whether the proposed fair use exception offers genuine advantages over the existing fair dealing provisions and that any changes maintain and, where possible, increase incentives to Australia’s creative content producers.’ Brandis maintained that ‘those who create the great Australian films, the great Australian television dramas, the great Australian albums, depend upon robust intellectual property laws to protect their creative endeavours’. He feared: ‘Without strong, robust copyright laws, they are at risk of being cheated of the fair compensation for their creativity, which is their due’. Brandis took a copyright maximalist position in the debate over copyright law reform: ‘As I know from my many discussions with members of the industry, they are looking to the Government to ensure that their interests are protected, and this, the Government will do.’

In a speech at the National Library of Australia [PDF], the Attorney-General commented: ‘I remain to be persuaded that [the adoption of a fair use defence] is the best direction for Australian law, but nevertheless I will bring an open and inquiring mind to the debate.’ He signalled his dissatisfaction with the High Court of Australia decision in Roadshow v. iiNet. Brandis instead voiced his enthusiasm for stronger copyright enforcement measures, such as graduated response schemes and three-strikes policies for Internet users. Citing Baz Luhrmann’s film The Great Gatsby, Brandis commented:

The Great Gatsby, Australia’s most successful film at the local box office last year, is now centre stage after its haul of 13 AACTA Awards and an Oscar nomination. Unfortunately the success achieved by The Great Gatsby can lead to piracy of the film, placing the sustainability of our screen industry at risk.

One area for potential reform of this problem may be section 101 of the Copyright Act. This provision provides that an entity which authorises the infringement of copyright without the copyright owner’s permission is liable for that infringement.

He maintained: ‘The government will be considering possible mechanisms to provide a legal incentive for an internet service provider to co-operate with copyright owners in preventing infringement on their systems and networks.’ Brandis commented: ‘This may include looking carefully at the merits of a scheme whereby ISPs are required to issue graduated warnings to consumers who are using websites to facilitate piracy.’ Such an approach is controversial — given the dismal history of graduated response schemes in jurisdictions like New Zealand.

The Coalition Government has also supported the adoption of the Trans-Pacific Partnership. The intellectual property chapter of the Trans-Pacific Partnership would provide for longer and stronger protection of copyright in Australia — and also limit the range of copyright exceptions permissible for participating countries. The investment chapter of the Trans-Pacific Partnership would allow for copyright owners to challenge government reforms in respect of copyright law, IT pricing, and e-commerce.

The commentator, Stilgherrian, wondered whether the proposals of the Attorney-General were well-adapted to the digital age. He lamented: ‘Apart from some results from the so-called iiTrial (which he rejects) and the aforementioned ALRC report (which he rejects), Brandis’ speech bases most of its understanding of modern, digital copyright law on the words of Lord Thomas Macaulay and Charles Dickens — that is, from 1841 and 1842, respectively.’

The technology journalist Josh Taylor perceptively noted that Roadshow– the owners of The Great Gatsby — had made generous donations to both the Coalition Government and the opposition, the Australian Labor Party: ‘An analysis by ZDNet of the annual donor returns listed on the Australian Electoral Commission (AEC) of reported donations to the political parties shows that since 1998, Village Roadshow has donated close to AU$4 million in total to the Labor and Liberal parties both federally and in the state branches.’ This investigative piece of journalism raises concerns as to whether Roadshow is seeking to rewrite Australian copyright law.

Economist Peter Martin emphasized that simplicity and fairness will aid innovation. He pleaded with the Attorney-General to develop a flexible defence of fair use for Australia: ‘As a deregulationist [Brandis] knows that simple rules are often the best. It’s time for simple rules.’

Dr. Nicolas Suzor has noted that consumers should not be treated like pirates: ‘The most important thing fair use does is help distinguish “piracy” from what ordinary consumers and creators do all the time.’

Angela Daly has questioned the merits of a three-strikes system in Australian copyright law.

3. The Australian Labor Party

In response, Jason Clare MP, the Shadow Minister for Communicationsfor the Australian Labor Party, noted that the Australian Law Reform Commission had made a number of compelling arguments. He noted: ‘It’s the countries that best adapt to digital disruption that will be the most innovative, most productive, the wealthiest and the most successful.’ He observed that a trip to the Silicon Valley had ‘opened my eyes to the need to look at this very seriously and make sure out laws are up to date with the needs to create a vibrant digital economy.’

Ed Husic MP, the Member for Chifley, has been an advocate for copyright law reform, particularly in respect of consumer rights and IT pricing. He was critical of the proposals of the Attorney-General.

The recommendations are going to be facing an uphill battle. It looks like the shutters are pretty much being drawn down. Copyright is being used as a form of quasi-protectionism. The way that it is being applied is designed to maintain revenue as opposed to encouraging innovation. We’ve heard a lot about piracy today. Clearly pirates have had a very emotionally scarring experience on Coalition ministers — they dedicated a lot of time to it today.

Husic has championed the adoption of recommendations of the IT Pricing Inquiry — including the adoption of a defence of fair use.

Tim Watts MP, the member for Gellibrand in the House of Representatives, called upon his party, the Australian Labor Party, to be ‘the Promethean party — the bearers of the fires of political change.’ He lamented in his first speech that ‘Australian copyright law, in which all reproduction is prohibited — other than specific, narrow exceptions — is particularly problematic and is currently throwing sand in the gears of digital innovation in this country.’ Watts maintained: ‘In the absence of a broadbased fair-use exception, innovations like the Google search engine and the iPod were legally problematic under Australian law upon introduction — chilling incentives for digital innovation in this country’. He also highlighted that maker communities and 3D printing may be the subject of litigation by intellectual property trolls. In February 2014, Tim Watts MP commented on the Australian Law Reform Commission report on Copyright and the Digital Economy: ‘For copyright reform advocates such as myself, the report is a landmark moment in the journey towards a copyright law that will help, not hinder, Australia’s digital economy’. He supported the adoption of a defence of fair use in Australia:

Watts emphasized: ‘A copyright regime that permits innovation is required to attract the companies and communities that will make Australia a leader in the digital century ahead.’ He stressed: ‘Many online communities often transform other’s copyrighted work by adding new uses for data or by creating completely new artistic works through what US academic Lawrence Lessig calls “remix culture”.’ Watts was of the view that ‘Such an active relationship between content creators and their audiences should be celebrated, not punished, so long as these new uses are not unfair, considering a range of explicit considerations.’

It remains to be seen what the Australian Labor Party’s overall stance will be on copyright law, fair use, and the digital economy.

4. The Australian Greens

For the Australian Greens, Senator Scott Ludlam has been a staunch advocate of the introduction of a defence of fair use into the Australian Parliament. He was the sponsor of a bill on the subject — the Copyright Legislation Amendment (Fair Go for Fair Use) Bill 2013 (Cth). Ludlam argued that ‘Australian copyright law is out of date, inflexible, unnecessarily complex, imbalanced and virtually blind to digital communication technology such as smartphones used by three out of four Australian adults.’ He noted that 2006 reforms to the copyright act had been outdated: ‘While the law caught up with the video age eventually, advances in technology have served to make our laws nonsensical once again.’

Ludlam has advocated the adoption of a United States model of a defence of fair use:

A Fair Use reform would shift Australian law to the US model. Such a technically neutral doctrine would allow the law to respond to developments in technology, with the acceptability of new uses of content and technology determined when a dispute arises. In the Australian system, every new use or technology is forbidden until Parliament gets around to saying otherwise. Under the fair use model, decisions are not made on specific technology through legislation but on the nature and market effect of use of copyright works. A Fair Use doctrine allows people developing new technologies or those who are reproducing and transforming culture to make an assessment about whether their use is fair, and, if they are challenged, they have to defend their use or negotiate terms with the copyright holder. The alternative is a less flexible rule-based system where people with existing lobbying power may have an undue advantage in achieving new exceptions.

For the Australian Greens, Ludlam concluded that ‘Copyright reform is needed to remove discriminatory barriers that impact the visually impaired or force Australians to pay more for no good reason, to protect our learning and cultural institutions and provide fair rules, fair process and fair opportunities to defend use of copyrighted material.’ He noted: ‘Australian laws cannot continue to migrate assumptions about copyright from the printed or analogue age which is rapidly passing as we enter the digital age.’

Senator Ludlam has also been suspicious of the Trans-Pacific Partnership, with its proposals with respect to intellectual property and investment.

5. Civil Society Responses

The consumer rights’ group CHOICE Australia has promoted the adoption of a defence of fair use. ‘If you set out to design a law that consumers would inevitably and unknowingly break, in their millions, every day, the Australian Copyright Act would be what you would end up with’ said CHOICE CEO Alan Kirkland. ‘Despite being updated in 2006, our current copyright law fails to even address basic technologies like DVDs, let alone emerging areas such as cloud computing.’ CHOICE Australia has led a petition against the adoption of a three-strikes response to copyright infringement.

Electronic Frontiers Australia called for the prompt introduction of a defence of fair use under copyright law. Chair, Dr. Sean Rintel, commented: ‘EFA believes that the introduction of a broad fair use exception into Australian copyright law is a critical and long-overdue element in providing a strong, relevant and flexible copyright regime that will serve Australia well into the future. 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.’

The Electronic Frontier Foundation observed: ‘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.’

The Pirate Party Australia has become increasingly active in Australian politics. The Pirate Party supported the adoption of a defence of fair use: ‘The past twenty or so years we have adopted many of the negative aspects of the United States’ copyright system, but with few of the safeguards the American laws have’, commented Mozart Olbrycht-Palmer, Deputy Secretary of Pirate Party Australia. ‘While we increased our copyright term to life plus seventy years via the Australia-US Free Trade Agreement in the early 2000s, we did not import fair use as a flexible exception for using copyrighted material without a licence.’ The spokesman emphasized: ‘These reforms are long overdue and go a long way to ensuring that Australia has copyright laws that genuinely reflect the needs of our society.’

The technology sector and the libraries and cultural institutions sectorhave also supported the introduction of a defence of fair use into Australian copyright law.

Conclusion

The Australian Law Reform Commission report on Copyright and the Digital Economy makes an important contribution to scholarship on copyright law and the defence of fair use. The study will inform both domestic deliberations over copyright law reform, as well as larger battles over the Trans-Pacific Partnership. The report is a thoughtful, independent, rigorous, and perceptive piece of work, which will set agenda with respect to copyright law in Australia. The Australian Law Reform Commission’s work will be the catalyst for great academic, political, and community debate about the future shape and form of Australian copyright laws. The Attorney-General George Brandis has been dismissive of the proposals with respect to a defence of fair use under copyright law. He has instead shown a fondness for the highly controversial three-strikes proposal. A number of Australian Labor Party politicians — including Jason Clare, Ed Husic, and Tim Watts — have been sympathetic to the work of the Australian Law Reform Commission. Senator Scott Ludlam of the Australian Greens has campaigned upon the need for the adoption of the defence of fair use under copyright law. There has also been strong support from consumers, technology developers, and cultural institutions for the introduction of a defence of fair use in Australian copyright law. 2014 will see an almighty fight over the future of fair use in Australia.

Biography

Dr Matthew Rimmer is an Australian Research Council Future Fellow, working on Intellectual Property and Climate Change. He is an associate professor at the ANU College of Law, and an associate director of the Australian Centre for Intellectual Property in Agriculture (ACIPA). He holds a BA (Hons) and a University Medal in literature, and a LLB (Hons) from the Australian National University, and a PhD (Law) from the University of New South Wales. He is a member of the ANU Climate Change Institute. Dr Rimmer is the author of Digital Copyright and the Consumer Revolution: Hands off my iPod, Intellectual Property and Biotechnology: Biological Inventions, and Intellectual Property and Climate Change: Inventing Clean Technologies. He is an editor of Patent Law and Biological Inventions, Incentives for Global Public Health: Patent Law and Access to Essential Medicines, Intellectual Property and Emerging Technologies: The New Biology, and Indigenous Intellectual Property: A Handbook of Contemporary Research. Rimmer has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, plain packaging of tobacco products, clean technologies, and traditional knowledge. His work is archived at SSRN Abstracts and Bepress Selected Works.

Matthew Rimmer, ‘The Fight for Fair Use in Australia: Copyright Law in an Age of Cloud Computing’, Fair Use Week, Harvard Library, 28 February 2014, http://blogs.law.harvard.edu/copyrightosc/2014/02/28/fair-use-week-day-five-with-guest-expert-dr-matthew-rimmer/