Fair use for Australia? A report from the Kernochan Centre

During the copyright reform process leading up Bill C-32 (the Copyright Modernization Act), some proponents of reform had advocated broadening the Copyright Act’s fair dealing exception to a US style fair use regime. This was opposed by a wide spectrum of the Canadian creative community. Eventually the proposal was not adopted when Bill C-11 was finally proclaimed into force. See, Barry Sookman and Dan Glover, Why Canada Should Not Adopt Fair Use: A joint submission to the Copyright Consultation

The Australian Law Reform Commission is now studying whether to recommend adopting an open ended fair use exception or a new broad exception for education. In connection with this review, Professors Jane Ginsburg and June Besek and others from the Kernochan Centre for Law, Media and the Arts produced a report to describe the principal US copyright exceptions relevant to educational uses of copyright-protected materials and the application of the US fair use doctrine to those uses.

The report assesses US fair use stating the following:

It is said that that “fair use in America simply means the right to hire a lawyer to defend your right to create.”  That is something of an overstatement, and in any event is rather meaningless. One might just as easily say “Copyright is the right to hire a lawyer to defend your right to your own work.”

Fair use is not entirely unpredictable.  But it cannot be denied that fair use is sometimes difficult to assess — even for attorneys — and reasonable, knowledgeable people often disagree.  It can often take a long time to get final fair use determinations, with lower courts being reversed with regularity. For example, in Harper & Row Publishers v. Nation Enterprises, many people thought the news purpose of the taking would lead to a finding of fair use. Nevertheless, the district court found that the Ford memoirs had been infringed. A divided panel of the Second Circuit reversed, and the Supreme Court reversed the Second Circuit, with Justices Brennan, Marshall and White dissenting.  The case was filed in 1980; it was 1985 before the Supreme Court issued its decision and remanded the case to the lower court.

In Sony v. Universal City Studios, the district court held that Betamax users made fair use and therefore it was noninfringing.  The Ninth Circuit Court of Appeals reversed, and the Supreme Court reversed the Ninth Circuit, with Justices Blackmun, Marshall, Powell and Rehnquist dissenting.   The case began in 1976; the Supreme Court issued its decision in 1984.

In Campbell v. Acuff-Rose, the district court found that 2 Live Crews’ song was a parody and fair use; the Sixth Circuit Court of Appeals reversed and remanded, and the Supreme Court reversed the appellate court.  The suit was filed in 1990; the Supreme Court’s decision did not issue until 1994, and it remanded the case to the lower court.

As the history of these cases demonstrates, it can sometimes take years to get a final determination as to whether or not a use qualifies as a fair use. Of course not all fair use issues are litigated. Prospective users often will consult with attorneys who, if fair use is uncertain, may counsel users to alter their conduct in some measure to be more secure in their reliance on the fair use defense.

In short, fair use is not the panacea some hold it up to be.

The report’s Executive Summary goes on to comment on how Australia’s and US laws would likely diverge even if Australia adopted US fair use or a broad exception for educational use:

Even assuming Australia were to adopt a fair use doctrine like that of the US, it is likely that the laws would diverge — first, because many US decisions have been close and could easily have gone the other way (indeed, in the US, the law can sometimes diverge from circuit to circuit), and second, because the economic, legal and social aspects of the two countries can differ. For example, the ready availability of a license tends to weigh against fair use, so to the extent collective licensing means are more readily available in Australia, it could affect the scope of fair use.

CAG Schools advocates an exception for fair use or educational use from legislation prohibiting circumvention of technological protection measures. It also recommends invalidating contract terms that would restrict educational fair use. The US has neither provision; as a general matter, copyright law in the US is a “default rule” and does not override contracts. Exceptions from the US anti-circumvention provisions for certain types of educational uses can be achieved only by participating in a triennial “rulemaking” proceeding in the US Copyright Office and establishing through evidence that a particular fair use is or will be adversely affected by the anti-circumvention provisions.

Finally, any comparison between a proposal for a fair use provision in Australian law and the existing US law must recognize that US law is a “moving target.” Some significant issues with respect to fair use of educational materials are still working their way through the US courts. Moreover, it is possible that the US will pass laws over the next few years that in some measure will affect the educational use of copyrighted works.

For more information about the Copyright Modernization Act or Bill C-11 or copyright reform, see Change and the Copyright Modernization Act.


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