Fair Use in Australia: Copyright Law in Need of Serious Reform

Australian copyright law has been under the spotlight recently for its well-known lack of fair use. The country’s copyright laws are relatively out of date, and considered fairly restrictive in comparison to the United States. While the law does allow for “fair dealing,” it is not an adequate substitute for fair use. Fair dealing permits the use of other work when reporting on the news, doing research or studying, satirizing or parodying, reviewing or criticizing, or providing professional or legal advice. While it does contain a set of factors to be considered when evaluating “fairness,” they do not apply to any activity which fall outside the clearly defined categories of fair dealing.

Australia’s lack of fair use means that any exception to potential copyright infringement has to be explicitly passed into law. The rules that therefore govern existing technologies do not necessarily apply to new technologies or content platforms that may have gained popularity later on. One notable example is the fact that Australians are legally permitted to digitally back up their VHS tapes, but not their DVDs. This portion of the copyright law was only amended in 2006, long after much of the world had already transitioned to DVDs. Until the 2006 amendment, using a VCR to record live television for home consumption was illegal as well.

Without fair use, millions of Australians may not realize they are unknowingly breaking the law every day. According to the Electronic Frontier Foundation, some activities that would qualify as copyright infringement include “forwarding emails, backing up movies, and sharing memes or mash-ups.” The Wikimedia Foundation also points out that sharing photos you didn’t take on social media, photographing graffiti or a mural, or quoting texts from article for your book or blog post, all qualify as technically infringing. Without permission, all copying outside of the fair dealing exceptions are considered illegal, unless the Copyright Act specifically states otherwise.

In May of 2017, the Wikimedia Foundation started an online campaign that would display banners to Australians visiting English Wikipedia pages, advocating for the government to adopt fair use. The banner states that under Australia’s archaic copyright laws, Wikipedia would not be able to accept “images, logos, and sound clips on over half a million articles” freely available for Australians to consume, thanks to American fair use laws. They have also created a Wikimedia Wikimedia “Meta-Wiki” page titled “FairCopyrightOz,” which encourages Australians to take action via the latest fair use campaign launched by Electronic Frontiers Australia and the Australian Digital Alliance. The page also links to a Wikipedia entry dedicated to the history of fair use proposals in Australia, including several government recommendations to implement fair use into law.

The most recent recommendation for reforming Australian copyright law came from the Australian Government Productivity Commission in 2016, concluding that “a system of user rights, including the (well-established) principles-based fair use exception” was needed in order to address many of the detrimental effects of the current system. One of the biggest arguments in favor of implementing reform is the potential for educational institutions to save the millions of dollars they currently spend on freely available online resources. Additionally, consumers would no longer be unknowingly infringing copyright just by going about their day online, or posting on social media, and artists would be less restricted in their ability to reference and remix other works into their art.

A recent article in The Saturday Paper by legal scholar and fair use expert Patricia Aufderheide, describes a case in which a low budget, 30 minute