{"id":66,"date":"2014-02-28T12:42:59","date_gmt":"2014-02-28T12:42:59","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/copyrightosc\/?p=66"},"modified":"2014-03-01T01:52:26","modified_gmt":"2014-03-01T01:52:26","slug":"fair-use-week-day-five-with-guest-expert-dr-matthew-rimmer","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/2014\/02\/28\/fair-use-week-day-five-with-guest-expert-dr-matthew-rimmer\/","title":{"rendered":"Fair Use Week: Day Five with guest expert Dr. Matthew Rimmer"},"content":{"rendered":"

For our final blog post of the week\u00a0we are honored to welcome Dr. Matthew Rimmer. \u00a0Dr. Rimmer is an\u00a0Australian 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).\u00a0<\/em><\/p>\n

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The Fight for Fair Use in Australia: Copyright Law in an Age of Cloud Computing<\/strong><\/h3>\n

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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<\/a>, \u2018As 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.\u2019 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<\/a>: \u2018We 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 \u201csecret sauce\u201d of U.S. cultural competitiveness.\u2019 Jurisdictions such as Australia have been at a dismal disadvantage, because they lack the freedoms and flexibilities of the defence of fair use.<\/p>\n

1.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Australian Law Reform Commission<\/strong><\/p>\n

There has been much angst that Australia has adopted features of United States copyright law \u2013 such as aspects of the Sonny Copyright Term Extension Act<\/em> 1998 (US) and the Digital Millennium Copyright Act<\/em> 1998 (US) \u2013 without the countervailing benefits of a flexible defence of fair use. As Adam Turner<\/a> lamented, \u2018Why did we gain the restrictions of US copyright law but not the rights?\u2019<\/p>\n

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.<\/p>\n

In February 2014, the Australian Law Reform Commission led by Professor Jill McKeough released its groundbreaking report on Copyright and the Digital Economy<\/em><\/a>. 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.<\/p>\n

The report recommended that \u2018The Copyright Act 1968 <\/em>(Cth) should provide an exception for fair use.\u2019 The Commission emphasized:<\/p>\n

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\u2019s 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.<\/p><\/blockquote>\n

The Commission suggested that the report would make Australia attractive to entrepreneurs, inventors, and start-up companies working in the field of information technology: \u2018Of course, innovation depends on much more than copyright law, but fair use would make Australia a more attractive market for technology investment and innovation.\u2019 In particular, a defence of fair use would be of benefit and assistance to search engines, social networks, cloud computing, and 3D printing.<\/p>\n

The Commission stressed: \u2018Fair use promotes what have been called \u2018transformative\u2019 uses\u2014using 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\u2019. The Commission noted that the defence \u2018can allow the unlicensed use of copyright material for such purposes as criticism and review, parody and satire, reporting the news and quotation.\u2019 The Commission recognised: \u2018Many of these uses not only have public benefits, but they generally do not harm rights holders\u2019 markets, and sometimes even enlarge them\u2019. The Kookaburra case<\/a> [PDF] has highlighted limitations of current Australia copyright law \u2013 where Men at Work\u2019s quotation of a Girl Guides song was considered to be a copyright infringement.<\/p>\n

Moreover, the Commission observed that the defence of fair use would also address a range of other copyright uses: \u2018Fair 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.\u2019 The Commission stressed: \u2018Copyright must leave \u2018breathing room\u2019 for new materials and productive uses that make use of other copyright material.\u2019<\/p>\n

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 \u2013 where the owner is lost or cannot be located. The Australian Law Reform Commission \u2018considers 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.\u2019<\/p>\n

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:<\/p>\n