Fair Use? Fair Dealing?

Abstract:     
In May 2005, the Commonwealth Government invited responses to the Issues Paper: Fair Use and Other Copyright Exceptions: An Examination of Fair Use, Fair Dealing and Other Exceptions in the Digital Age. Although presented as an open-ended review of existing exceptions, the Issues Paper appears to be operating on a foregone conclusion. That is, that a defense to copyright infringement modeled on a US open-ended fair use style defense (along with some other options) would serve as a panacea to the potential problems created by the strengthening of copyright owners' rights pursuant to amendments necessitated to the Copyright Act 1968 (Cth) as a consequence of Australia's entry into the Australia-US Free Trade Agreement (AUSFTA). Further, the paper suggests that such amendments may assist in maintaining 'an appropriate balance between the rights of copyright owners and reasonable access to copyright material for users'. This conclusion is not supported by a more detailed analysis of the fair use defense as reflected in US case law.

Keywords: Copyright, copyright infringement, fair use, Australia, AUSFTA

JEL Classifications: K20, K40

Accepted Paper Series