Is Australia’s copyright law fair?

Photo by Paul Robinson, CC BY-NC

Did you know that Australia doesn’t have a fair use exception? This means that a whole range of common everyday activities, such as forwarding an email or sharing a photo, are potentially illegal.

Instead Australia has a closed list of exceptions which only allows copyright material to be used in certain ways if it’s specifically legislated for. This has resulted in a system which is overly complex (our Copyright Act is over 700 pages) and slow to adapt to change (it wasn’t legal to use a VCR to record television until 2006).

In comparison fair use is an open exception which simple asks the question “Is it fair?” based on a range of criteria or “fairness factors”. This means that some uses will never be considered fair, such as illegally downloading movies, while other non-consumptive or transformative uses will be, such as text or data mining.

Here are just 3 examples of uses which are most likely illegal in Australia but may be allowed under a fair use exception:

  • Memes – while these might seem ubiquitous the creation and sharing of memes occur in a grey legal area, to be legal it’s not enough for them to be funny instead they have to fall under the category of “parody or satire”.
  • Illustrations in theses – it’s common for people to include figures and images in their thesis which they didn’t create to illustrate or explain a concept, but unless they have permission from the copyright owner this content needs to be stripped from their thesis before we can make it available online.
  • Material captured in lecture recordings – while web pages and online videos can be displayed and played in lectures this content can’t automatically be included in the lecture recordings, this means that if you miss a lecture or are an external student you’re not necessarily getting an equivalent learning experience.

The University pays substantial amounts of money to copyright owners both through the educational statutory licenses and the purchase of licensed library resources, the introduction of fair use won’t change that. What it will do is enable us to deliver a better teaching and learning experience and reduce the chances of everyone inadvertently infringing copyright on a daily basis.

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