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What’s more fair… Dealing or Use?

Updated: Jun 27, 2018

What exactly is fair?

The issue of fair use versus fair dealing is once again hitting the headlines, as Parliament considers the recommendations of the Australian Government Productivity Commission’s report recommending changes to the Copyright Act. It’s turning into a battle between large tech companies and artists as to what type of third party use of Intellection Property (‘IP’) is fair, dealing or use?

At issue is how countries differ in their approaches to copyright, whether it be the length of protection, or as in this case, what third parties can do with another party’s IP.

Australia, like the UK and many other common law countries, has the concept of fair dealing, and indeed was one of the first countries to have such provisions for third party use of IP.

Under the Copyright Act, there are five fair dealing exceptions which allow the use of another’s copyright work, and do not make it a breach of the copyright owner’s IP to do so.

The exceptions are for:

  1. Research or study;

  2. Criticism or review;

  3. Parody or satire;

  4. Reporting news; and

  5. For legal practitioners, patent and trade mark attorneys to be able to give professional advice.

Additionally, to falling into one of these categories, the dealing with the IP must be fair. This varies for every use, but many people will no doubt be familiar with the library example of being able to copy up to 10% of a textbook, with any more being a breach of copyright. If the dealing doesn’t fall into one of these categories, then there isn’t the possibility of it being fair dealing. This differs from fair use, where there is no such first step of first falling into a category.

Countries such as the United States have fair use, which can generally be considered to be a broader standard than fair dealing. In it, there is no requirement for the use to be part of a category, but rather it must simply be ‘fair’. This gives greater scopes for companies to use third party IP, as all they have to do is prove that the use was fair and not too great an infringement on the third party’s IP.

This is why the fair dealing provision is particularly being challenged by technology companies, such as search engines, who see it as stifling innovation. Companies are keen to put as much information as possible in front of people, and hence argue that innovation will be improved by allowing fair use rather than fair dealing. With the pace of technological innovation, they believe that the current law is outdated and not able to keep up with the pace of change on the internet.

Artists and many other creatives, however, have a different view, and see the changes as an encroachment on their use of their own IP, allowing others to use it for no charge and making it more difficult for them to earn a living from their craft.

There is no doubt that paying the bills as an artist, especially in a smaller market than the US, is difficult, so it is unsurprising that artists and many entertainment and IP trade bodies are very much against the changes.

Parliament will soon be considering the proposals, and with fierce lobbying by both sides of the debate, it will be interesting to see if the changes have a greater chance of being accepted then previous attempts to change fair dealing. It is no doubt a difficult issue, having to weigh the ability of creatives to earn a living from what they do, and the need to ensure that Australia is at the forefront of technological and other innovation.


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