The ALRC Report on Copyright and the Digital Economy was released earlier this month. It’s an extremely thorough and well-reasoned analysis of exceptions in Australian copyright law. The main thrust of the report is to recommend that Australia introduces fair use; in the alternative, the ALRC recommends consolidating the fair dealing defences and expanding the category of uses to which they can apply.
The ALRC adopts a conservative approach here. The suggestions it makes are by no means radical – usually, the ALRC suggests that existing Australian copyright jurisprudence will inform any new law, and the report steers well clear of making any suggestion that fair use would reverse some of the more controversial decisions.
This is the report’s greatest strength. The reasoning is unassailable, and the reforms suggested by the ALRC are mostly in the relatively minor form of clarifications, simplification, and fixes to issues that are commonly understood to be problematic in the current law. The ALRC seeks to build consensus on this limited approach – in such a way that pragmatic law reform might be politically feasible. Where there is real disagreement, the ALRC punts to the courts (in terms of identifying whether existing cases would have different outcomes under fair use) or to future law reform processes.
This careful approach is apparent in navigating a lot of the contentious issues. The ALRC explicitly doesn’t accept the Canadian Supreme Court’s position that exceptions are “user rights”; neither does it buy the argument that the only role of exceptions are to address market failure. Accordingly, it doesn’t follow Hargreaves in recommending a “digital copyright exchange”. It doesn’t take a position on whether Men at Work’s use of Kookaburra, Optus’ TV Now cloud PVR system, or The Panel’s use of Channel Nine’s television clips would have been fair use. It suggests that courts will figure out the intersection between ‘fair use’ in the economic rights and ‘reasonableness’ in the moral right test, whether harm to reputation and brand count as harm in the fair use test, whether music sampling is fair, and whether harm to a potential market should count in the fair use test.
Hedging on these bets is a very smart decision. It was likely necessary in order to craft any sort of acceptable recommendations — explaining that the current law will probably still apply in future defuses a big criticism of fair use as a sweeping change. But the ALRC report has a number of different audiences — the Federal Government is one of them, but the Federal Court is another. By setting out a coherent set of principles, the ALRC report may help increase the coherency of future decisions. Certainly, the continued stress on the role of transformativeness and market harm could inform future decisions based on existing law. This makes the report fascinating – it simultaneously avoids making suggestions that past decisions might be overturned while reprioritising the foundational principles upon which they are based. The ALRC takes the position that explicitly considering fairness will increase the coherency of these positions, and in doing so, probably does in fact set the stage for future principled reform, either by the legislature or the courts.
At first I thought the ALRC had missed an opportunity to engage with these normative debates, but it’s apparent that it has actually chosen to do so at a higher level — in the form of foundational principles — rather than the much messier and more contested level of individual outcomes. This, I think, is what makes this report so important, whether it gets picked up in law reform or not.
Some particular, scattered, and not well-organised observations follow, over the fold. Read more ›