Fair Dealing v Fair Use v a Fair Attorney General


Late last week some of the best coverage of the ALRC's copyright review recommendations was offered by IT News.  There's two main points in play here and it bears examining both, because both will be battlegrounds shortly.  The two recommendations that come out of the review are no-brainers from a consumer perspective, have the content industries howling and tearing at their shirts, and AG George Brandis' first reaction was to express concern and skepticism.

The first piece to examine is that of fair dealing and fair use, and how the report recommends we look at fair use in Australia to replace fair dealing. For the unfamiliar, copyright laws establish a bunch of legal rights and criminal offences around what happens to copyrighted material.  Under US Fair Use exemptions, reproducing copyrighted work is permitted so that you can critique it, use it as an example in a school assignment, make copies to include in a handed out uni case study etc.  The focus in fair use is on fairly broad concepts - how many copies were made? How much of the copyrighted work was reproduced?  Was there a non-copyrighted alternative to get the same information across?  Was the copyright owner's interest in protecting the profitability of its entertainment value impacted?

Fair dealing in Australia (and elsewhere) is different.  There are specific reasons that fair dealing exemptions can be considered in play for a copyrighted work, they are;

  • To research or study it
  • To review or critique it
  • To report it as news
  • As part of the provision of legal advice in most circumstances
  • To parody or satire it in most circumstances

Exemptions even exist to those fairly narrow exemptions; statutes have copyright attached to them from the crown and some satire and parody has been found to not be fair dealing.

Our ability to access US-style exemptions to copyright law follows a similar model to our ability to access everything else to do with movies and music from the US; years later, not as good, broadly ignored.

As it currently stands, while downloading movies and music non-commercially in Australia isn't illegal, copyright owners would have rights to pursue compensation if the much narrower "is it for one of these reasons" fair dealing criteria aren't met for a piece of copyrighted material.  If a teacher shows a portion of a copyrighted movie to a class and the criteria for research or study of the copyrighted material isn't met (perhaps it was part of researching and studying something else?) then Village Roadshow can pursue the Victoria Education Department for royalties.  The ALRC called out an even more concerning phenomenon (but were not the first to do so), copies of copyrighted works are routinely made automatically for various purposes whether or not we even think about it or realise.  Technology features like rewinding live TV, making a recording to watch later, transforming a work that is viewable on an Apple TV so it can be watched on a Samsung Tablet, all create copies of copyrighted work that are neither for research, critique, news, legal advice or parody.  The copies might be temporary and "behind the scenes" with you never able to access them, but they are created and that's what the law covers.

It's in copyright owners' interest to maximise the circumstances in which they can pursue being paid for the use of something they have the commercial rights to, and they are pushing back against it being rationalised.  George Brandis appears to be sympathetic to the idea of maintaining the status quo and keeping content owners' options open.

The second fairly harrowing issue to come out of the nascent discussions is the old chestnut of making ISPs responsible for copyright infringement on their networks and introducing a "graduated response" scheme where Internet users who are alleged to infringe copyright are sent warning notices from content owners via their ISPs which escalate in gravity until becoming legally relevant and/or the ISP terminates the customer's service.  This has been coming from the(/an) Australian government since a cabal of copyright lobbyists lost a lengthy and expensive series of court battles to ISP iiNet where it was established that ISPs have no more obligation to control the legality of your Internet use than AGL has to control the legality of your electricity use.  Communications Minister Stephen Conroy after (and distastefully during) that decision was highly critical and flagged legislative change to support the network operators being obligated to do Hollywood's bidding.  Brandis appears excitable about the plan now.

What will be interesting to watch is that in the time between this being originally floated as a copyright protection strategy years ago overseas, and it being ruled out here, it's been implemented in other countries as an unmitigated disaster.  Primarily international experience has been that content owners would like to commence a flooding rain of warning notices on Internet users but the costs that ISPs set to process the notices makes it impossible to be indiscriminate with them.  The model is also predicated on the idea that no users retaliate, but where Internet users have replied with varying degrees of civility - and particularly where they have sought legal advice before doing so - the procedures in place have been caught not expecting and unable to accommodate lengthy arguments.  Perhaps most notably, France backed away from a graduated response scheme in 2012 when a million warning emails and 99,000 registered letters were sent to suspected pirates, but 134 cases were referred for examination for prosecution and 0 of them were actually escalated to cutting someone off from the net.

The ALRC review and what the attorney general thinks of it will continue to evolve and Any Any will continue to follow it, but the initial direction seems clear.  The content industry want to maintain the overly broad circumstances in which it can assert its rights, and the adoption of failed mechanisms to protect them looks like it is on the cards.


Image: Makerbot