Fair Use As an Advance on Fair Dealing? Depolarising the Debate

Abstract

Despite repeated calls for the introduction of a “fair use” defence to copyright infringement in Australia, there appears to be little prospect of Australia adopting such reform. Instead, the debate over copyright exceptions reform appears to be at impasse, with one camp arguing forcefully in favour of fair use and the other camp defending the status quo. In this paper we seek to revitalise the debate around the desirability of options for reform other than “fair use”, such as the addition of new fair dealing purposes or the development of other closed provisions that utilise a less prescriptive drafting style. We start from the premise that the exceptions regime in Australia has fundamental problems and is in need of reform. Our aim is to assess the value of a model that maintains but expands and improves upon a closed-list system, compared to one based around an open-ended “fairness” exception. In Part II we observe how exceptions debates in Australia and elsewhere have come to be focused around the issue of whether or not to adopt fair use. We note that while a focus on fair use is to be welcomed for highlighting inadequacies of the current closed-list system, this has led to the ousting of any meaningful consideration of alternative approaches. In Part III we turn to consider substantive arguments in favour of fair use and the status quo, noting how those arguments tend to converge into debates over “certainty versus flexibility.” Here we see the repetition of certain tropes, for instance that closed exceptions provide greater certainty in outcomes and practice but are unresponsive to changing conditions, whilst fair use affords a greater degree of flexibility and adaptability but is unpredictable. We seek to depolarise this aspect of the debate by providing a fuller account of what “increasing flexibility” actually entails, including by reference to recent experiences in Canada and the UK that demonstrate how closed systems may exhibit benefits usually associated with a fair use approach. While we remain of the view that fair use is the best reform option for a country such as Australia, we argue that it is important not to overestimate the merits of fair use in comparison with a substantially rehabilitated closed-list model. Expanded fair dealing, coupled with a range of specific exceptions, remains a viable option and is worthy of careful consideration. It ought not to be marginalised or repudiated in the rush to make a case that Australia’s system of exceptions should be liberalised.

Keywords: intellectual property, copyright, copyright exceptions, fair use, fair dealing, law reform