The Moebius Strip: private right and public use in copyright law.

• Author: Baron, Paula
• Position: Symposium: Interdisciplinary Conference on the Impact of Technological Change on the Creation, Dissemination, and Protection of Intellectual Property

INTRODUCTION

The balance between the private rights of copyright owners and public use of copyright material is often said to lie at the heart of copyright law. (1) Recently, the nature of this balance was raised in Australia by an issues paper--Fair Use and Other Copyright Exceptions: An Examination of Fair Use, Fair Dealing and Other Exceptions in the Digital Age--produced by the Attorney-General. (2) The Fair Use Paper was directed to the question of whether fair use provisions should be introduced into Australian copyright law to replace the current fair dealing provisions. Fair dealing provisions tend to be more specific, less open-ended, and less flexible than fair use provisions. Fair use provisions, thus, provide potentially greater scope for non-infringing public uses of copyright material.

This idea was not new: such reform to the Australian Copyright Act had been recommended by various bodies since 1998. (3) The impetus for the current inquiry was, in part, "concerns over whether the current [fair dealing] exceptions are too complex or are sufficiently flexible to provide for new uses that are possible with digital technology" (4) and, in part, because of concerns about the impact of amendments to the Copyright Act necessitated by the Australia-United States Free Trade Agreement (AUSFTA), which would strengthen the rights of copyright owners. (5) The introduction of fair use provisions was seen as necessary by some to re-establish the balance between the rights of copyright owners and those of users, disrupted by these developments. (6)

The Australian Government decided, however, to reject the proposal for fair use provisions in favor of the introduction of further specific, enumerated exceptions to copyright infringement and (somewhat ironically given the impetus for the Fair Use Paper) a range of new measures to counteract copyright "piracy." (7)

Utilizing the metaphor of the Moebius Strip, this Article argues that the relationship between the competing rights of owners and users is complex and highly dynamic, affected by changing conceptions of copyright as well as the wider context within which copyright law operates. The Australian Government's response to the proposal to introduce fair use provisions into the Australian Copyright Act is thus open to criticism on at least two bases. First, it does not provide the degree of flexibility needed to respond to the dynamic relationship between private ownership and public use (8) of copyright material. Second, it does relatively little to address issues raised by the general historical movement towards the expansion of owner rights at the expense of user rights. At the same time, the introduction of a U.S.-style fair use provision, of itself, would not be a satisfactory response to the issues raised by the enquiry into fair use; rather it is necessary to acknowledge the variety of factors that can impinge upon the ongoing relationship between owners and users of copyright material.

Part I of this Article outlines the issues raised by the Fair Use Paper. Part II of this Article criticizes the Australian Government's response to the Fair Use Paper, utilizing the metaphor of the Moebius strip. Part III of this Article addresses the point that by merely introducing a U.S.-style fair use provision into Australian copyright law, of itself, would not be a satisfactory response to the Fair Use Paper.

1. THE FAIR USE PAPER

   The Attorney-General's Fair Use Paper of 2005 was prompted by the recommendations of the Joint Standing Committee on Treaties (JSCOT) and the Senate Select Committee (SSC) on the AUSFTA. AUSFTA would "extend[] the term [of protection] for most copyright material by 20 years," provide copyright owners with "more extensive owner control over temporary copies and provide[] stronger protection for technological measures used by owners to control [user] access to ... copyright material." (9) Submissions made to JSCOT and SSC expressed concern that the AUSFTA would shift the "balance" between copyright owners and users too far in favor of copyright owners and that U.S.-style fair use provisions should be imported into the Australian Copyright Act to redress this imbalance. (10) In order to understand this suggestion, it is necessary to outline the difference between fair use and fair dealing provisions.

   Although all copyright regimes allow for some public use of copyright material, (11) there is a significant difference between the U.S.-style fair use provisions and fair dealing regimes. (12) The fair use doctrine in the United States requires courts to consider four factors in determining whether a use is "fair:" "(1) the purpose and character of the use ...; (2) the nature of the copyrighted work; (3) the amount and substantiality ... [taken from] the copyrighted work ...; and (4) the effect of the use upon the potential market for or value of the copyrighted work." (13) Other jurisdictions, such as Australia, (14) New Zealand, (15) Canada, (16) and the United Kingdom, (17) have fair dealing provisions. "The fair dealing [provisions] are also based on a concept of fairness but are confined to ... specific purposes." (18)

   In Australia, the fair dealing provisions are in two parts of the Copyright Act of 1968, providing defenses both for "works" and "subject-matter other than works" (Parts III and IV of the Act, respectively). (19) The Act provides that it may be a defense to copyright infringement if the copyright material was used for research or study, (20) criticism or review, (21) reporting the news, (22) or professional advice given by a legal practitioner, patent attorney, or trade marks attorney. (23)

   The Act does not provide a definition of the term "fair dealing" and the fairness of a use is to be determined on a case-by-case basis. (24) A court must exercise discretion in determining whether or not a dealing is fair. (25) Only the provision relating to fair dealing for the purposes of research or study provides some guidance to the court by way of a set of non-exclusive factors to be taken into account in determining whether a dealing is fair. These are:

   (a) the purpose and character of the dealing; (b) the nature of the work or adaptation; (c) the possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price; (d) the effect of the dealing upon the potential market for, or value of, the work or adaptation; and (e) in the case where part only of the work or adaptation is copied--the amount and substantiality of the part copied taken in relation to the whole work or adaptation. (26)

   Despite the fact that these factors are expressed to apply only in relation to an assessment of fairness in relation to use for research or study, in practice they have been considered relevant to a dealing for one of the other purposes. (27) The fair dealing provision relating to the purpose of research or study also provides quantitative parameters, within which a dealing will be deemed to be fair. (28)

   Fair dealing provisions are generally perceived to be more restrictive than fair use provisions (the United States provisions, for instance, would allow a fair use that falls outside one of the Australian fair dealing categories) (29) and to provide courts with less flexibility in dealing with new technologies. (30) Of particular concern to the Fair Use Paper was the fact that the specificity of the fair dealing provisions meant that certain private consumptive uses--particularly "time-shifting," (31) format shifting, (32) and back-up copying (33)--constituted copyright infringement in Australia. There was also concern expressed that the fair dealing provisions were not appropriate for dealing with digital technologies.

   The Fair Use Paper acknowledged, however, that there was opposition to the introduction of fair use into the Australian Copyright Act based upon the potential uncertainty of such a provision, whether such a provision could successfully be incorporated into the Australian Act and "whether such a provision would be consistent with [Australia's] treaty obligations." (34) Nevertheless, consolidating the fair dealing exceptions in a single open-ended "fair use" style provision was one of the potential policy options identified by the Fair Use Paper. (35) The other options included: "retain[ing] current fair dealing provisions and add[ing] further specific exceptions" into the Act or "retain[ing] current fair dealing provisions and addling] a statutory license that [would] permit[] private copying of copyright material." (36)

   In response, the Government passed the Copyright Amendment Act of 2006. Ultimately, the Government decided not to introduce fair use provisions but rather to introduce further specific and enumerated fair dealing exceptions (37) for uses such as format shifting, time-shifting, back-up copying, parody and satire, (38) and non-commercial educational uses. It also undertook to pursue a range of new measures to tackle copyright "piracy." These measures include on-the-spot fines, proceeds of crime remedies, and a change in presumptions in litigation to make it easier to establish copyright piracy. (39) Research is also to be undertaken by the Australian Institute of Criminology "on the nature and extent of piracy and counterfeiting in Australia" and how best to respond to the problem. (40)

2. TWO CRITICISMS OF THE GOVERNMENT'S RESPONSE TO THE FAIR USE PAPER

   This part of the Article suggests that the Australian Government's response to the Fair Use Paper is open to criticism on at least two bases: first, it does not provide the degree of flexibility needed to respond to the dynamic relationship between ownership and use of copyright material, and second, the Government's response does little to redress the wider issues relating to access to copyright material (such as the use of technological protection measures or the use of contract to override fair dealing provisions)...