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Australia's Battle Over Fair Use Boils Over

Tuesday, February 21, 2017 11:18
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Public submissions on the Australian Productivity Commission’s proposal to introduce a fair use right into Australian copyright law have just closed, and Australian rightsholders are frothing at the mouth in their attempts to block this long-overdue reform.

joint letter that rightsholder groups issued last week repeats the already-debunked claim that the adoption of fair use would “smash GDP to the tune over 1 billion dollars” [sic], and a separate letter from Screen Producers Australia [PDF] predicts that with the adoption of fair use, “the Australian film and television sector would go from an internationally renowned industry … to a cottage industry overnight.”

Screen Producers also argues that even if fair use is adopted, copyright owners should be entitled to reverse its effects in their contracts with users; for example by using the small print in your music store’s terms of service to prohibit you from using your fair use rights to take clips for a school project. Although this would completely defeat the purpose of adopting fair use to begin with, the industry body has no shame in making it clear that this is exactly what it would do if this were allowed (because it would otherwise “eliminate an important source of revenue for producers”).

Against this, the Australian Digital Alliance—which includes educational institutions, libraries, and technology companies—responded with its own letter which cogently argues that: 

Australia’s existing system of fixed, technologically-specific copyright exceptions has led to the situation where many socially beneficial uses of copyright works remain presumptively unlawful in Australia unless and until an exception is introduced to permit them. This is the case even where there is strong public interest in allowing these uses, and where there is no harm caused to copyright owner markets. It has resulted in Australia’s copyright laws being out of date and not fit for purpose in the digital economy.

Indeed, Australia is one of the few holdouts who haven’t adopted a fair use right among its Southeast Asian trading partners, since Singapore, Thailand, Malaysia, the Philippines, and South Korea already have such a right. Just in case you were wondering, this hasn’t resulted in the sudden collapse of local content industries in those countries. Indeed, research from Singapore suggests that the adoption of fair use has had a net positive effect for industry [PDF] there. Of course, looking at how America’s content industries have thrived under a fair use regime, we should never have expected otherwise.

The problem that faces Australia’s privileged content industries in their battle against fair use is that the Australian Productivity Commission’s proposal already carefully considered the pros and cons of the adoption of fair use on the basis of a wealth of evidence, and came to a clear conclusion. This leaves the content industries sounding rather like doomsday prophets, wailing about an apocalypse that only they can see coming. As Spanish writer and philosopher Miguel de Unamuno once said, “A lot of good arguments are spoiled by some fool who knows what he is talking about.”


This Week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

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