fair use in copyright
Fair use in copyright law — should we adapt it in Australia?

If you’ve ever been on YouTube, you may have noticed something funny crammed between the comments section and the video. It usually looks something like this:

“Copyright Disclaimer Under Section 107 of the Copyright Act 1976, allowance is made for “fair use” for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. Fair use is a use permitted by copyright statute that might otherwise be infringing. Non-profit, educational or personal use tips the balance in favor of fair use.”

This disclaimer pops up on video games, music videos, and even adult websites, like the world’s nerdiest virus. All over the globe, people are taking copyrighted stuff and reissuing it under the doctrine of “fair use”.

What is fair use?

Like deep fried butter and deep fried Coca-Cola, fair use is an American concept. It was codified in the U.S. in 1978 and provides protection to people seeking to use the copyrighted material of others.

When deciding what is “fair”, the courts consider:

  • The purpose and character of the use;
  • The nature of the copyrighted work;
  • The amount of the work used as a whole; and
  • The effect that the use would have on the value of the copyright.

If the courts consider the use of the copyrighted work ‘fair’, then the person using it does not have to seek permission from the copyright holder.

Usually, this means that the person using the copyrighted material isn’t seeking to devalue the copyright, or make an easy profit by republishing it as their own.

How does fair use work?

Here’s an example of how these rules work: imagine a person wants to use this photograph with the caption ‘Brisbane’s best lawyer!’ in a testimonial.

The photograph is copyrighted material, so can our reviewer use it? If we assume that the intention of the testimonial is not to devalue the existing copyright, or to make a profit from it, the photo and caption would probably be considered fair use under American law.

Fair use allows you to make a comment, to criticise, to teach, to report news and to research, without having to get permission from copyright holders first.

Fair dealing in Australia

Australian law doesn’t currently contain a ‘fair use’ provision. Instead, we have something called ‘fair dealing’, which sounds like something a morally upstanding drug dealer might consider.

Fair dealing is much more limited than fair use, and only allows copyrighted material to be used in five ways:

  1. Criticism and review;
  2. Satire or parody;
  3. News;
  4. Legal advice; and
  5. Research and study.

When deciding whether a use is ‘fair’, we consider very similar things to the Americans. We ask how much of the work is going to be copied, whether the use will devalue the original, whether the original creator will be given credit, and a few other issues.

Should Australia adopt fair use?

There are good arguments for Australia adopting fair use.

For one thing, it’s clear that Australia is the legal equivalent of a 60-year-old with sciatica… incredibly inflexible. Fair dealing is limited to 5 categories, which means we have pre-set guidelines as to what is fair dealing. If something new and novel comes along, our laws might not be able to deal with it properly.

Think about VCRs, for example. Remember those? They were the mutant cousins of cassette tapes that we used to watch videos on. Wait, you don’t remember cassette tapes? Oh, God. We’re getting old.

Back in the 90s, before TV was in the cloud and the cloud was full of carbon monoxide, people used to tape Friends and Fraiser using their VCR. That way, they could watch their shows any time they liked! It was like Netflix, but instead of being “on demand”, your shows were “in the cupboard” under a box of old socks.

In America, the home taping craze was allowed under the doctrine of fair use. When people were pirating copyrighted shows, fair use stepped in to save the day.

Things went a little bit differently in Australia. Fair dealing didn’t apply to the new technology of VCRs, and home taping remained illegal (despite the fact that everybody did it) until 2006. For reference, that’s 6 years after the DVD-ready PlayStation 2 came out.

A lot of companies are jostling for fair use provisions in Australia. Both Google and Wikipedia believe that Australians need fair use. They argue that if their companies had begun in Australia, our copyright laws would have killed them before they even started.

Wikipedia’s use of copyrighted images, for example, would almost certainly be prohibited under Australian law. The Australian Law Reform Commission also believes in fair use, stating that “fair use would provide flexibility to respond to changing conditions and would assist innovation.”

It seems obvious to us that allowing fair use would give Aussies a fair go, and that sounds fair enough to us. Fair dinkum.

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