This week is Fair Use Week/Fair Dealing Week, and initiative started by the Association of Research Libraries which celebrates the importance of flexible exceptions to copyright systems around the world.

So it seems like the perfect time to look again at the fair use debate in Australia. A few years ago the Australian Law Review Committee (ALRC) recommended that Australia adopt a fair use exception to replace its current fair dealing exceptions, as well as a number of other exceptions in our Copyright Act. The Productivity Commission is in the process of considering this recommendation, along with other potential changes to Australia’s IP system, and is due to report in August.

But what exactly was the ALRC recommending?

Thanks to the internet, fair use is a term that is increasingly familiar to Australians. But it is significantly different from the fair dealing exceptions that we currently have. Fair use essentially says “you can make any use that is fair” (with some guidelines as to what fair means). Fair dealing, on the other hand, says “you can make any use that is fair as long as it is for certain set purposes.” Fair dealing is the model used by most of our common-law cousins, including the UK, Canada, and New Zealand. Fair use is originally a US invention, though it’s now being adopted around the world by nations such as Israel and South Korea.

Fair dealing is fine and useful as far as it goes – it adds a bit of flexibility to an otherwise fairly strict copyright system to allow uses that we all agree are socially beneficial. Australia’s fair dealing provisions are actually more generous than most, as they allow uses for parody and satire, an exception which doesn’t exist in most places. But it (literally) has its limits, and leaves a problematic gap in Australia’s copyright law. This gap lies between the uses that can be made legally under an exception – photocopying material for research and study, for example – and the uses that can be licensed – downloading a movie, for example.

In this gap sits a huge range of common uses that are in theory illegal, but which it isn’t worth the copyright owner's while to prevent or license. These include small domestic uses, such as forwarding an email, recording yourself singing karaoke or printing a poem in your wedding program. But they also include important business and technological uses, such as caching, cloud computing and data mining. Schools, universities, libraries and businesses all rely on such practices – indeed, without caching, the internet itself wouldn’t work.

Such uses happen thousands of times a day across the country. But because they cause little or no harm to the copyright owner and could attract only extremely low (if any) licence fees there is little incentive for the copyright owner to provide a licence for them or for the government to introduce exception than applies to them. Instead, they are left in a legal “don’t ask don’t tell” limbo, where the activities remain illegal but everyone does them anyway. We rely on the good faith of the copyright owners and the cost of litigation to stop people from being sued for ordinary, harmless activities.

Most importantly – these "limbo" uses also include any new technologies that use copyright material in an innovative way. A limited exception like fair dealing cannot deal with new uses - it just doesn't have the flexibility. So every time a technology is invented that touches on copyright, it is presumptively illegal in Australia.  And the only way for it to become legal is for a new exception to be introduced by the government. This means that the law is constantly playing catch up – and thanks to the political difficulty of getting new copyright exceptions considered, let alone passed, the law can be a long way behind. It was illegal to record a television program until 2006 in Australia, more than 20 years after video players first hit the shelves. And it is still illegal to record a show and lend it to your neighbour.

The arguments of a lot of opponents of fair use basically boil down to “we don’t know what effect it will have, and the system works fine, so why change”. But any system which makes the ordinary behaviour of individuals, not to mention basic processes fundamental to hundreds of businesses, illegal, does not work fine. It is broken. So is a system which makes new technologies illegal by default, until the government gets around to making them legal. It’s not good for business, discouraging local investment and putting Australian companies at a disadvantage to their overseas cousins. It's not good for schools and libraries, leaving them unable to make full use of the digital technologies available to them. And it’s not good for individuals, making them unwitting criminals as they go about their day to day lives. It’s not good for people’s respect for the law if the law doesn't make sense and leads to ridiculous outcomes.

Only an open-ended, truly flexible exception like fair use can solve this problem. You can keep introducing new exceptions to permit specific uses until the cows come home, but the law will always be behind society and technology. Fair use provides an escape valve for the copyright system, allowing it to adapt immediately to new technologies and new uses, but only where they should be allowed ie where they are fair. It protects copyright owners by ensuring that activities that hurt their commercial interests remain illegal, while protecting members of the public by ensuring uses that don’t are allowed. It introduces common sense to copyright law. Something Australia’s copyright law could do with.

For more on how Australia’s current copyright system is broken, see this Creationists video (sponsored by the ADA).

For more on how fair use allows everyday uses in America, see this infographic by the Fair Use/Fair Dealing Week team.