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Working Paper

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We provide these comments in connection with the Australian Law Reform Commission’s ongoing study of copyright and the digital economy, and in particular its request for comments on the recommendations put forth in its Discussion Paper 79 (June 2013). We focus on US law, and how the US experience bears on the possibility of an open-ended uncompensated "fair use" type exception in Australia, and other related issues.

The fair use doctrine in the US provides great flexibility, but that flexibility in many instances comes at the cost of certainty and predictability. We are not suggesting that reasonable judgments cannot be made about whether a particular use is fair; certainly experienced practitioners make such judgments daily. But fair use decisions are often complicated, and advice frequently depends as much on the amount of risk the user is willing to undertake as it does on the evaluation of the substantive law. Our point is not that fair use caselaw absolutely resists synthesis, but rather that the synthesis most successfully occurs at a high level of abstraction; individual actors, by contrast, need to know whether their particular plans will run afoul of the law.

Legal literature has seen many attempts over the years to simplify or clarify fair use, both descriptive and prescriptive. But it would be premature to conclude that the law of fair use is or soon will be coherent and predictable. Guidelines could theoretically help in interpreting fair use, but the weight and value of guidelines depends on how they were developed.

The ALRC Discussion Paper’s proposals could result in a broader fair use doctrine in Australia than in the US. Notably, fair use in Australia, as in the US, would exempt certain uses without countervailing compensation. But the proposed Australian version may embrace a greater range of commercial actors, thus altering the balance. The proposals include additional illustrative purposes; they would also permit commercial users to stand in the shoes of clients entitled to exceptions. The ALRC also proposes that contracts or contract provisions that attempt to bargain around library exceptions and certain fair use exceptions would be unenforceable. In the US, contracts concerning copyrighted materials are usually upheld. As a general rule, contract preemption does not serve to invalidate contract provisions that limit the exercise of copyright exceptions, and the doctrine of copyright misuse does so only in the most egregious of cases.

Finally, in the US there is no exemption from anti-circumvention of technological access controls for such broad purposes as "exercising fair use" or "making noninfringing use." Certain narrow fair uses have been deemed exceptions pursuant to a triennial rulemaking conducted by the Copyright Office, but those exceptions must be revisited every three years.


Intellectual Property Law | Law


Kernochan Center for Law, Media and the Arts