History of fair use proposals in Australia
Opponents of the proposed fair-use system say that it would introduce "significant and unnecessary uncertainty into Australian law”[6] and that it is "an American legal principle that has enabled large enterprises in the US to use copyright material for free".
"[21] In response, the two Parliamentary committees tasked with reviewing the AUSFTA implementation recommended that Australia should introduce fair use, "to counter the effects of the extension of copyright protection".
[22] They noted that "the application of a broad, open-ended 'fair use' doctrine, similar to that in the United States, may ... assist in legitimising several commonplace actions undertaken regularly by Australians perhaps unaware that they are infringing copyright.
"[27] While noting that "Nothing in the AUSFTA would prevent Australia from implementing legislation to raise the level of originality and to introduce a 'fair use' defence to copyright infringement",[28] the committee understood that IP collecting societies (including Viscopy, CAL, and ARIA[29]) "oppose any move to adopt a 'fair use' defence"[28] on the basis that the introduction of a foreign legal concept would "have many additional implications for Australian law", was "an unjustified abrogation of the rights of copyright owners" and would "significantly increase enforcement difficulties".
Nicola Roxon referred "the matter of whether the exceptions and statutory licences in the Copyright Act 1968, are adequate and appropriate in the digital environment" to the Australian Law Reform Commission (ALRC) for investigation.
[30] After an 18-month review, it recommended the introduction of fair use as it "would streamline our current hotch-potch copyright laws, which aren't designed to cope with the rapid pace of technological change.
A technology-neutral open standard such as fair use has the agility to respond to future and unanticipated technologies and business and consumer practices.
[33][34] As it was not a government bill, and did not proceed to a vote, it lapsed in November of that year on the day of the installation of the new parliament following the 2013 federal election.
One major criticism raised by rights holder representatives is concerns about its potential to reduce royalties paid by Australian schools.
[52][53][54] In acknowledging the existence of the fund, CAL stated it would be used to "...run any legal cases that would arise as a result of changes in legislation, and cover operating costs while the law remained unsettled and where there had been a reduction in licence fees".
[52] Universities Australia argued it was "ironic" to fund a campaign against fair use with money obtained through orphan works: “This just goes to show that Australian authors wouldn’t be harmed if universities and schools could rely on a fair-use exception for copying orphan works...If Australia had a fair-use exception, this money would never have been collected in the first place.” Kim Williams, chair of CAL, responded that “The reason for provisioning this money is simple: any board that does not prudently provision for the risk of a calamitous regulatory change … would be guilty of extreme negligence.”[55] Over the course of the various public inquiries, many example use-cases for where fair use would be applicable have been proposed.
