JILT 1997 (1) - Peter Brudenall
The Future of Fair Dealing in Australian Copyright Law Peter Brudenall AbstractThe defence of fair dealing has been an important component of modern Australian copyright law in providing a balance against the rights of copyright owners with the requirements of users to access material. This article examines the current law of fair dealing in Australia, and how changes to copyright laws in Australia and internationally may impact on the future of the doctrine. This is a shortened version of the author's Master's thesis completed at the University of New South Wales, Sydney. The author's views do not necessarily reflect those of his employer. The author acknowledges the assistance of Associate Professor Jill McKeough in writing the thesis upon which this article is based.
This is a Refereed Article published on 28 February 1997 Citation: Brudenall P 'The Future of Fair Dealing in Australian Copyright Law', 1997 (1) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/copright/97_1brud/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1997_1/brudenall/> 1 IntroductionAs copyright material becomes increasingly digitised, tensions have arisen between those controlling and using such material. Although digital technology provides significant benefits in disseminating copyright material, there are disadvantages. Digitised material may be easily reproduced or manipulated, and then further disseminated by the user - potentially damaging the copyright owner's market. This has led to a general perception in countries with strong copyright based industries, such as the United States and Australia, that increased copyright protection is necessary to provide works with adequate protection when transmitted in a digital form, and to provide sufficient incentive for new digital works to be created. [See, for example (Information Infrastructure Task Force; 1995) and (Copyright Convergence Group; 1994)] As a consequence, current efforts at revising copyright laws have focused on ways by which protection of copyright works can be strengthened. Enhanced copyright protection may, however, come at a price to users of information. As the exclusive rights of the copyright owner become stronger, users' "rights" of free access and use of material in digital form may be diminished. Without such rights, there is the real possibility of barriers being erected around information based products placing greater restrictions on the communication of ideas, with provision of material granted solely on the copyright owner's terms. The most significant right available to Australian users of copyright material under the Copyright Act 1968 ("the Act") is the defence of fair dealing. [1] Fair dealing allows for copyright material to be copied for certain purposes without permission if the dealing with that material is 'fair'. It is the purpose of this article to examine the fair dealing defence within Australian copyright law, and examine the future of the defence. It will be my general thesis that the public interest served by the defence of fair dealing will continue in a digital environment. As copyright's "idea/expression dichotomy" in digital works becomes redundant, fair dealing in a digital environment will be one means by which access to the expression of ideas is guaranteed, and allows those ideas to be re-used, criticised or discussed. Although fair dealing in Australian law applies to subject matter other than works, [2] I will focus on the defence as it applies to works, and in particular, literary works. 2 The Development Of Fair Dealing In Australian Copyright Law2.1 Copyright in Australia - an Historical BasisAustralia's present system of copyright protection derives from English legislation in the 18 th century. Whilst it is beyond the scope of this article to include a detailed summary of how and why English law developed a law of copyright, (For an excellent summary see (Patterson L R ; 1968)) an overview suggests that copyright protection was a reaction to laws that existed as tools of censorship, and thus was aimed at promoting the widespread dissemination of information. 2.1.1 Early cases and fair dealingEven the very earliest of English copyright cases following the enactment of the Statute of Anne recognised that there may be acceptable non-licensed uses of copyright material that are not infringing. It was clearly recognised that copyright in a work did not prevent anyone else from using the work; the right was simply to prevent the work's reproduction. In Miller v Donaldson 98 ER 201, Aston J said that a purchaser of a book may "improve upon it, imitate it, translate it, oppose its sentiments: but he buys no right to publish the identical work. (Aston J at 226; see also Lord Mansfield at 251) More specifically, English courts began to allow what became known as "fair abridgment", [3] and a right allowing the illustration of a review with quotations.(see eg, Mawman v. Tegg 2 Russell 383. per Lord Eldon) It has been noted that this indicates an early acceptance that there existed a legitimate public interest in the creation of new, derivative works (Fulton G; 1996, p8). 2.1.2 Statutory codification of fair dealingBy 1911, copyright had been extended to other types of work, with statutory extensions and variations being made in an often ad hoc manner. The 1911 UK Copyright Act altered this trend and, in repealing many of the earlier statutes, became an all-embracing copyright statute. By an Act of the Commonwealth Parliament in 1912 (Copyright Act 1912), the British Act of 1911 was declared to be in force in Australia. This Act remained in force by virtue of section 4 of the Statute of Westminster until the current Copyright Act was passed in 1968 despite the British Act being repealed in the UK in 1956. The 1911 Act for the first time expressly incorporated fair dealing terms. The Act provided for "any fair dealing with any work for the purposes of private study, research, criticism, review or newspaper summary" (Section 2(1)(i)). This Act also removed the link between substantiality of reproduction, and a fair dealing. Previously, the two concepts had been closely related, but in this Act, and in the 1968 Act, an insubstantial reproduction of a work does not constitute infringement and fair dealing is only pleaded for a reproduction of a substantial part or more. 2.2 Recent Amendments to the Fair Dealing Provisions - the Franki CommitteeThe most extensive statutory changes to the Australian fair dealing provisions occurred as a result of the recommendations of the 1976 Copyright Law Review Committee Report on Reprographic Reproduction ("the Franki Committee Report"). These changes included the removal of the qualification to a fair dealing for the purpose of study having to be for "private" study only. This limitation had been originally derived from the British Copyright Act 1911 . The Franki Committee also recommended the introduction of what became the factors set out in sub-section 40(2). These are, in general, a codification of the common law factors that had been used by courts to assess fair dealing. 3 The Current Law As To Fair DealingIn Australia, as well as being "fair", a fair dealing must be within one of the categories set out in the Act. [4] These categories serve to limit the scope of the defence, protecting the interests of creators (Fulton G; 1996, p45), and distinguishes the Australian defence from its equivalent within the US Copyright Act where fair use is not restricted by categorisation. An Australian court, if faced with a question of fair dealing in relation to a literary work, would therefore need to refer to relevant decisions of the courts of the United Kingdom, New Zealand, and the United States. Whilst it may be thought that the different constitutional context in which decisions of US courts are made would cause those decisions to have less relevance to Australian law, it is nevertheless true that US and Australian copyright law share many of the same judicial antecedents and, as a consequence, decisions of US Courts require consideration. 3.1 The Meaning of "Fair Dealing"The drafting of the Australian "fair dealing" provisions, like those in other jurisdictions, has been left broad, with little legislative guidance as to what is to be considered with respect to determining the "fairness" or otherwise of a dealing. This was not, however, an oversight of the legislature. The breadth of the provisions is to provide courts with a wide discretion to shape the law in this area based on varying factual situations. For example, in University of New South Wales v Moorhouse (1975) 133 CLR 1, Chief Justice Gibbs said:
In perhaps the most well-known description of fair dealing, Lord Denning in describing section 6 of the Copyright Act 1956 (UK) (fair dealing for criticism or review), stated "(I)t is impossible to define what is "fair dealing". It must be a question of degree".( Hubbard v. Vosper [1972] 2 QB 84 at 94.) Such a wide discretion in the law does, however, have the disadvantage of reducing certainty for the application of the law by copyright users. Such uncertainty was at least partly the reason why the Franki Committee recommended the introduction of the factors now set out at sub-section 40(2), and the deeming provisions at sub-section 40(3). For reasons unstated, these factors only relate specifically to instances of a fair dealing for research and study. For the remaining categories of fair dealing with works, that is, a fair dealing for criticism and review (section 41), reporting news (section 42) and the giving of professional (legal or patent) advice (sub-section 43(2)), there is no such legislative guidance, and any assistance as to the circumstances when a dealing with a work for those purposes will be "fair" must be gleaned from the common law. 3.2 Fair Dealing for Research or Study - Section 403.2.1 Meaning of "research" and "study"It is fair to say that of the provisions governing fair dealing, the most well known among Australian users of copyright works is section 40 which states that a fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work for the purpose of research or study does not constitute an infringement of the work.(sub-section 40(1)) This makes section 40 the form of fair dealing that is of most concern to publishers of copyright material. Publishers, particularly those of educational material, believe that in a digital environment students could utilise section 40 to access, copy and transmit significant portions of their works without fear of infringement, possibly causing irreparable damage to their market. In De Garis v Neville Jeffress Pidler Pty Ltd[1920] AIPC 90-768 (" De Garis "), the Federal Court examined the limits of the fair dealing provisions generally. Two journalists argued that Neville Jeffress Pidler ("NJP") had infringed the copyright in their respective works in the course of NJP's business as a press clipping service. NJP pleaded each of the three fair dealing defenses under sections 40, 41 and 42 of the Act. In relation to section 40, Beaumont J held that "research" and "study" were intended to have their ordinary dictionary meanings. [5] Using the Macquarie dictionary, the Court defined "research" as being:
Similarly, "study" was defined as:
However Beaumont J in De Garis held that the purpose of the copier in that case was not to conduct research or study, but was purely commercial - to supply a photocopy of material already published in return for a fee. (Beaumont J at 36,330) This was an activity the Court classified as being in the ordinary course of trade. In the New Zealand case of Television New Zealand Ltd v Newsmonitor Services Ltd [1993] 27 IPR 441 ("Television New Zealand") Justice Blanchard also found that, in the equivalent New Zealand provisions, a fair dealing for the purpose of research and study did not encompass activities in which the material is simply copied and passed onto others for the commercial profit of the copier. 3.3 The Fairness of Research and Study - the Section 40 FactorsA dealing with a work for the purpose of research or study that is not deemed to be fair by virtue of sub-sections 40(3) and (4) will be assessed for fairness by reference to the factors set out in sub-section 40(2). These factors are very similar to those that are applied in the US to judge fair use. The factors set out in sub-section 40(2) 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 a 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. The most recent US Supreme Court case dealing with fair use, Campbell v Acuff-Rose [1994]114 S Ct. 1164 (" Campbell ") gave a decisive opinion as to how the US factors should be interpreted. Each factor, said the Court, is to be understood as a subset of the overall goal of copyright law: to bring intellectual enrichment to the public by providing authors with limited control over their writings to provide them with the necessary inducement to create. The factors are not separate, but are interrelated and together are used to assess where the limits to the author's control should be drawn. Unfortunately the lack of case law in Australia means that the factors do not provide any substantial assistance to either the user or owner of copyright material to know what may be a fair dealing under this provision. Some analysis of these factors is therefore required. 3.3.1 First Factor: Purpose and Character of the DealingAscertaining the purpose and character of a dealing with copyright material has often been more of a question of determining if there has been a commercial dealing with the work. It is commonly believed that a commercial use of a work prevents that use being considered to be a fair dealing. Although there is no doubt that a commercial use of a work is unlikely to favour a finding of fair dealing, this will not be conclusive. The Australasian cases that best illustrate the intolerance with which courts will generally perceive purely commercial uses with copyright material are De Garis and Television New Zealand . In De Garis , for example, considerable emphasis was placed on the commercial nature of the press clipping service. In that case, Beaumont J said that to have copied the whole of the work, and for a purely commercial purpose without making any payment, could not be characterised as a fair dealing.(Beaumont J at 36,330) In Television New Zealand , a similar, although more confined, approach was taken by the High Court of New Zealand. In that case Newsmonitor Services taped broadcasts of television and radio news and current affairs programs and supplied transcripts of extracts for its customers. Like the Federal Court in De Garis , the Court did not believe that the appropriation of copyright material for the profit of the media monitor amounted to a fair dealing. As Justice Blanchard stated in that case, "a news monitoring business is parasitic. Why should it have a free ride on a broadcaster?". ([1993] 27 IPR 441 at 466) In both De Garis and Television New Zealand , it was important to the Courts that the copyright material was not being transformed, or used in the creation of a new work, but simply sold to customers. The High Court of New Zealand was sympathetic to a use of copyright material for research or study in a commercial setting, an approach that has not yet been tested in Australia. In obiter , Justice Blanchard stated:
The difficulty for courts adjudicating the research functions of a corporation in a digital environment will be the increased value that will be obtained from individual works if copied into a database. A central database of works in digital form networked to employees would become a considerable asset to a company. Being able to search, access and transmit the works is a significantly more powerful use of the copyright owner's intellectual property than that of employees merely photocopying the work and archiving a hard copy. As a consequence, the greater value of a copy in a database compared to a hard copy may weigh against a finding of fair dealing in virtually any commercial setting where such a use was being made. 3.3.2 Second Factor: Nature of the workThis is perhaps the least contentious of the factors. It is generally accepted that dealings with works of a factual nature are more likely to be fair than dealings with works which are fictional. [6] Thus, copying from journals that include articles of a scientific nature may be more likely to be fair than copying from a work of fiction.(eg American Geophysical v. Texaco Inc 29 IPR 381 at 399) It has also been suggested that works not intended for publication are open to greater use under fair dealing because they are not created for purposes compatible with the public benefit objective of copyright law (Australian Council of Libraries and Information Services ("ACLIS"); 1994, p5). 3.3.3 Third Factor: The possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial priceThis is the one factor that is not included in the US fair use factors, and the reasons for its introduction into the Australian Act are difficult to ascertain. It would appear that where a work is commercially available, it will be more difficult for a dealing with the work to be fair. Obviously this is to ensure that copying of works for research or study does not impact too heavily on the market for the original work. What is less clear is how the copier is to know if they have made sufficient inquiries as to the availability of the work, or if the availability of second-hand copies of the work must also be ascertained. 3.3.4 Fourth Factor: Effect of the dealing upon the potential market for, or value of, the work or adaptationIn Television New Zealand, Blanchard J stated that in some cases it will be necessary to pay regard to any depreciating effect which the dealing has on the worth to the plaintiff of the work.(27 IPR 441 at 465) A number of US fair use cases have consistently emphasised the importance of this factor in determining fairness. This is most likely because it is the factor that most clearly identifies the economic implications of a fair use with respect to the value of the work. However, there has recently been significant disagreement about the correct manner in which to interpret the clause, particularly in relation to the licensing, or potential licensing, of copying by collecting societies. In Texaco, when discussing the equivalent US factor to sub-section 40(2)(d), the Court emphasised the ability of the defendant corporation, Texaco, to obtain a licence for its copying of journal articles, rather than copying them for free. Thus, the Court held that a use will be considered less fair when there is a ready market or means to pay for the use.(29 IPR 381 at 406) The existence of a collecting society, the Copyright Clearance Centre ("CCC") in the US which offered licences to corporations for the copying of its members' works was highly persuasive. Under this reasoning, any copyright owner who can demonstrate that they have suffered, or is likely to suffer, a loss of licensing revenues as a result of a failure by a user of copyright material to obtain a copying licence will have a strong case for rebutting the defence of fair dealing. Interestingly, the Court of Appeals amended their decision in July 1995, nine months after the decision was handed down. In that amendment, the Court limited their decision to "institutional" or "systematic" copying and left open the question of photocopying by an individual for their own research in a commercial setting. [7] A powerful dissent in Texaco has received some support. Justice Jacobs took the view that the availability of a CCC licence had little to do with fair use. His Honour said that since the only harm to a market is to the assumed market in photocopy licences, "there is a circularity to the problem": the market will not crystallise unless the court rejects the fair use defence; but the court cannot find that the use infringes unless there is a market to be harmed.(29 IPR 381 at 412) Justice Jacob's reasoning was reflected in the original decision of the US Court of Appeals for the 6 th Circuit in Princeton Univ. Press v Michigan Document Service, Inc .(" Michigan Documents Services ") [8] The case concerned the production of "coursepacks" by a commercial copyshop, Michigan Document Services, Inc., who argued that their services could be done under the fair use provisions. On appeal from a decision of the US District Court for the Eastern District of Michigan, the Court in deciding in favour of the defendant's copying activities, said that
Of interest is that the Court's decision was overturned by a majority of the same Court following the Appeal Court's decision to hear the case en banc . [9] This reversal of the original decision, and the differing judgments of those hearing the case en banc suggest that a further appeal to the Supreme Court is possible. 3.3.5 Fifth Factor: Amount and substantiality of the work takenClearly the more substantial a part taken by a copier, the less likely a dealing will be considered fair. In Campbell , in the context of a musical parody of a song, the US Supreme Court relied on this factor to inquire whether the quantity and value of the materials used were reasonable in relation to the purpose of the copying, and noted that the "extent of permissible copying varies with the purpose and character of the use."(114 S Ct. 1164 at 1175) 3.4 The Other Categories of Fair Dealing with Works3.4.1. Criticism and ReviewThe category of fair dealing for criticism or review contained in section 41 is principally to allow critics and commentators to, by way of illustration, comment upon the works of others. Although there is likely to be some commercial motive involved, for example, when reviewing books for the purpose of publishing those reviews, the fact that only a small portion of the work is copied, and the work is being publicised, will usually find such copying considered sufficiently in the public interest to be deemed fair. Again, as with "research" and "study", the ordinary dictionary meanings apply to both "criticism" and "review".((1990) AIPC 90-678; 36, 332.) In De Garis , Beaumont J held that NJP had not made enough "cognitive input" to qualify NJP as either a critic or a reviewer when photocopying news clippings for commercial purposes. Beaumont J said that the word "review" is "cognate with the word "criticism".(1990) AIPC 90-678; 36, 332.) "It may be said that one is the process and the other is the result of the critical application of mental faculties."((1990) AIPC 90-678; 36, 332.) This was a process that NJP did not have and, according to the Court, "the task undertaken (by NJP) is one of location rather than evaluation".((1990) AIPC 90-678; 36, 332.) To qualify for this defence, a defendant would therefore have to introduce some mental element into the dealing. 3.4.2 Reporting the NewsA fair dealing for the reporting of news under section 42 allows the use of copyright material, most usually by the media, to report on "news". The copying must be for the purpose of, or associated with, the reporting of news in a newspaper, magazine or similar periodical provided a sufficient acknowledgment is made by the copier. [10] A similar view of this provision can be taken as for section 41: no serious harm is being done to the original work as a result of the copying so per se the copying should be fair. The defence was discussed in De Garis .((1990) AIPC 90-678; 36, 333.) As with its other arguments of fair dealing, NJP was unable to establish its activity as coming within the subject matter of the provision, in this case, reporting the news. The Court defined "news" by its ordinary dictionary meaning, but stated that "news" was not limited to current events.((1990) AIPC 90-678; 36, 332). 3.4.3 Giving Legal AdviceA legal practitioner or patent attorney providing legal advice may, under section 43(2), fairly use a work when advising clients, although it is difficult to understand why legal practitioners and patent attorneys have been singled out as professions that may utilise fair dealing provisions. There seems little benefit in maintaining such provisions. 3.5 Is There a Category of Fair Dealing for Political Discussion"?A category of fair dealing that is yet to be fully explored at a judicial level is that of a dealing with copyright material that is for the purpose of enhancing political discourse. In Commonwealth of Australia v Fairfax [1980] 147 CLR 39 Mason J (as he then was) suggested a new approach to the concept of fair dealing as applied to the copyright in government documents. Mason J's approach [11] considered that:
Although Mason J felt that it would be inappropriate to adopt the argument because of the interlocutory nature of the application, his Honour's comments signal the potential for expansion of the fair dealing defence if to do so would enhance communication of matters in the public interest. In light of the recognition by the High Court of an implied constitutional right to political discussion, [12] it is conceivable that there are now even stronger claims to such a construction of fair dealing. 4. The Rationale For Fair DealingAlthough it is yet to be discussed to any great extent within Australia, there is little doubt that finding a rationale for fair dealing will become an increasingly important issue as review of copyright continues. It is submitted that there are three important justifications for fair dealing: (a) fair dealing is in the public interest as an important device to ensure that information is both widely accessible, and may be freely communicated; (b) fair dealing supports the overall economic arguments that copyright provides incentive to create; and (c) fair dealing encourages competition. 4.1 (a) Public interest argumentsIn the current reform process, consideration must be given to ensuring that not only is on-line content present, but that equitable means of access and use of that content is permitted. At present, regulation of copyright material on the Internet is largely ensured via contract with credit card payments required by those seeking to charge for access. Other groups appear happy for their material to be copied, and perhaps the majority of those making material available rely on existing laws - uncertain of their application to the Internet. Given the origins of the Internet as a forum for sharing research it is perhaps not surprising it has developed in this way. [13] What is most significant, however, is that it has developed, thus far, with little regulation of any kind. Current fair dealing laws go some way towards ensuring that users may access and use copyright material in a print environment, and may have a similar role for information provided via networks. [14] Although Fulton (1996) has stated that the traditional basis of fair dealing is to enable the public to create new works from existing works rather than as a means of simply accessing existing works, this will change in a digital environment. A right of fair dealing may be the only legal means of obtaining access to material in digital form without a licence. Should a right of transmission be added to the copyright owner's bundle of rights, and a copy in a computer's RAM be deemed to be a reproduction in material form, then access to material becomes dependent on the copyright owner. Recognition of the significance of fair dealing was made recently by the former Chief Justice of the High Court, Sir Anthony Mason (1996) who stated that:
In addition, the former Chief Justice has been critical of the CLRC's recent publication Copyright Reform: A Consideration of Rationales, Interests and Objectives for failing to highlight the public interest in the "free flow of knowledge, ideas and information" (Mason A; 1996, p87). Implicit in this criticism is a belief that without a right of fair dealing, copyright has the potential to impede the public's right to access and use the ideas of others. This public interest has also been reflected in descriptions of the US fair use provisions. Fair use has been described as:
This captures what many may regard as the most important justification for a right of fair dealing: its importance as an aid in communication. The judiciary in the US have generally accepted copyright as being a necessary and acceptable limitation on communication, and have not been sympathetic to arguments that the US constitutional right to free speech is significantly limited by copyright. As Bannister (1996) points out, copyright and rights of communication have often been seen to be mutually exclusive concepts. That this may be so is largely because copyright policy has built in safeguards against communication being overly restricted by the statutory monopoly given to the copyright owner, in particular, the so-called idea/expression dichotomy, and the fair dealing defence. The distinction between ideas and their expression is, however, too difficult to define for most judges and arguably is a legal fiction (Drahos P;1994, p257). It is not clear, for example, whether the "look and feel" of computer software is the idea or the expression of the idea (CLRC; 1995, para. 114). This conceptual difficulty, particularly in the area of computer programs, suggests the idea/expression dichotomy cannot be relied upon in the digital environment to ensure ideas will always be in the public domain and freely accessible. [15] Being able to use and re-work ideas contained within copyright material involves both access to the material, and the concomitant right to use at least some of what has been accessed. To a large extent, the public interest in the free access to ideas can be maintained through rights of fair dealing. 4.2 (b) The economic justifications of fair dealingFor the economic justification for copyright law to be a realistic and persuasive model, the extent of copyright protection should be limited to only what is necessary to provide sufficient incentive to create works not otherwise provided by the unregulated market. Anything that goes beyond this is likely to create a market inefficiency because of the strength of the monopoly enjoyed by the creator. This dilemma is explained by Cooter and Ulen (1988):
Thus, too much copyright protection has the potential to impede creativity or commercial investment in new development. [16] Producers of multimedia works, for example, often seek to incorporate elements of existing works in an original setting. Increasing copyright protection, or reducing limitations on the owner's rights, could be detrimental to the interests of creators such as multimedia producers by preventing such uses or existing works. Thus, any expansion of the rights of the author as a creator will also hinder the creative scope of the author as user (Van Caenegem W; 1995, p82). Similarly, development of essentially functional goods such as computer programs, where protection may extend to the ideas in the program, is hindered if those ideas are treated as being protected, or access to those ideas is prevented. This was recognised in the US case of Sega Enterprises Ltd v Accolade Inc . [1993] US App Lexis 78 2, in which the US Court of Appeals recognised that it would not be in the public interest for the object code of a computer program to be protected. The Court allowed the disassembly of the copyrighted object code as being "a fair use of the copyrighted work if such disassembly provides the only means of access to those elements of the code that are not protected by copyright and the copier has a legitimate reason for seeking such access". [17] The analysis of economists Landes and Posner (1989) supports this notion. They argue that "the less extensive copyright protection is, the more an author, composer or other creator can borrow from previous works without infringing copyright and the lower, therefore, the costs of creating a new work." The converse, they argue, is also true - the more extensive copyright protection becomes, the higher the costs of creating a new work, which may in fact work against the incentive ideal. Extensive protection may also lead to the lack of an efficient industry standard where such a standard would be in the public interest. Wendy Gordon (1982) has proposed a three part test in order to determine when fair use should be allowed. Where: (a) market failure is present; (b) transfer of the use to defendant is socially desirable; and (c) an award of fair use would not cause substantial injury to the incentives of the plaintiff copyright owner, then the court should consider a defendant's use to be fair. (Gordon W; 1982, p1614) Gordon (1982) further suggests that a court should consider the wider social implications from determining a use to be fair. She says that:
Consideration of the cumulative harm that may result from allowing fair dealing of digital works is reflected in Article 9(2) of the Berne Convention, and Article 10 of the recently determined Copyright Treaty. These Articles require exceptions to rights to be confined to cases that do not conflict with the "normal exploitation of the work." It is one of the main concerns of copyright owners of works in digital form that fair dealing will interfere with the market of works distributed on-line. It is argued that potential losses to rights holders will be greater if fair dealing is permitted for private copying from personal computers. Access and the re-use of information through fair dealing assists in the realisation of the goal of copyright policy to encourage the production of new works to the benefit of society. This is because the rights granted to copyright owners allow control over a work's dissemination. For example, a commercial advantage may be obtained over competitors from withholding material, or there may be a desire to exploit existing products for a longer period to avoid making what is currently available redundant (Blakeney M and McKeough J; 1990, p13). In the case of The Commonwealth of Australia v John Fairfax & Sons Ltd [1980] 147 CLR 39 it was the Australian Government's desire to restrain publication of sensitive governmental information. However, rights to access and use protected material facilitate the creation of new works. Provided that the incentive to create original works is sufficient, then it will be in the public interest to ensure that some means of free access to those works is made possible. 4.3 (c) Fair dealing as a means to encourage competitive activityRelated to the economic arguments outlined above is the idea that unless there exists certain restrictions and exceptions to the copyright owner's monopoly, then anti-competitive conduct may flourish. Fair dealing encourages competitive activity by allowing for the use of copyright material in the development of new products, and in circumstances where the copyright owner may otherwise wish to restrict or prevent such use. Although there may be situations where trade practices legislation would provide a remedy in cases where, for example, a licence is refused, (eg section 46 of the Trade Practices Act 1974 (Cth)) a right of fair dealing can also assist to ensure that for purposes where the public interest is sufficiently great there is a means of ensuring that access will be available. The concept of "reverse engineering" [18] is one method by which the expression of ideas can be extracted and then re-used in order to produce new goods. The US Court of Appeals in Sega v Accolade [1993] US App Lexis 78 2 recognised that it would be in the public interest to allow Accolade to use Sega's object code as it would result in greater production of video games for use with Sega's console. Obviously this activity worries the manufacturers of computer programs because it provides an opportunity for competitors to clone the ideas contained in computer programs and compete in the same markets. The CLRC (1995) agreed that reverse engineering should not generally be permitted, and recommended the prohibition of reverse engineering unless it otherwise comes within the fair dealing defence. [19] However, the CLRC (1995) did recommend that fair dealing should allow the decompilation of computer programs in order to "understand techniques" subject to the qualification that only "non-commercial" activities be governed. [20] Nevertheless, the principles of reverse engineering can apply to traditional works such as literary works when in digital form. The process of research into a particular subject matter requires the browsing, reading and copying of other works, and often the incorporation of some of the ideas contained in those other works into the result of the research. Fair dealing currently extends to such a process, and thereby encourages new works to be created. 5. Can Fair Dealing Apply In The Digital Environment?The application of fair dealing to works in digital form should cause few theoretical difficulties. The alteration of the medium of delivery per se should not mean that users must forego their existing right to use works for specific purposes. Courts have been prepared in the past to interpret the Act broadly so as to protect new types of works [21] , and similarly, courts should be prepared to ensure that new methods of using works under existing exceptions are also protected unless substantial harm to the copyright owner's market is caused. 5.1 The Distinction Between Public and Private Uses of Copyright MaterialFair dealing has traditionally been accepted as being a private dealing with copyright material, such as an individual reproducing a work for their own research purposes. Hence few cases of commercial dealings with works, such as where works have been copied and then on-sold, have succeeded as being a fair dealing. Similarly, copyright owners have most often been concerned to litigate against infringements when they perceive some intrusion on their commercial market. Thus an informal public/private distinction has developed which has assisted in determining what is likely to be a permissible act with a work. However digitisation of works, and more particularly the inclusion of works on a digital network, may render this distinction obsolete. Personal use may interfere with the copyright owner's "public" market over which the owner seeks control. [22] The same equipment that allows a work to be accessed also permits its dissemination. Even if not done for financial gain, an accumulation of users each using the work for their own individual purposes could reduce the market value of the work (Elkin-Koren N; 1996). Consequently:
A further example of how digital technology will alter the public/private distinction is likely to be the increased impact of contract law in dealings between rightsholder and user. As rightsholders move to disseminate material on-line, they will attempt to ensure that usage is governed by contractual terms in private transactions as well as those provided by copyright laws because of the extra protection contractual rights will bring. This has been noted by Ginsburg (1994) who states that
If copyright law is perceived as inadequate, or providing too many exceptions, copyright owners may ignore copyright altogether and rely on contractual remedies. Although access to material via contract may provide users with greater certainty as to the scope of "private uses", (Fulton G; 1996, p52) use of contract law together with technological forms of protection, such as through encryption, will weaken current rights to access and re-use ideas. However it should be noted that potential problems may exist under contract and trade practices law when imposing harsh or unreasonable contractual terms in relation to information or copyright material deemed essential to the production of new goods, 5.2 Australia's International ObligationsPossibly the most critical factor in determining the future of fair dealing in Australian copyright law will be the extent to which Australia's trading partners view exceptions to copyright rights. With the extension of multilateral trade agreements to intellectual property, [23] Australia is part of a global economy that will become increasingly centred around intellectual property as industrial economies are transformed into information economies. This will place immense pressure on the Commonwealth government to conform to international standards. Vast differences in exceptions to copyright are not likely to be tolerable where the exploitation and dissemination of material occurs without respect for international borders. Australian laws on copyright are intended to conform with principles established by various international conventions and treaties. The most important international copyright instrument to which Australia is a signatory is the Berne Convention for the Protection of Literary and Artistic Works, although the recently concluded Copyright Treaty will achieve similar prominence should it be signed and ratified by Australia. [24] The other significant instrument is the Rome Convention for the Protection of Performers, Producers of Literary and Artistic Works. Despite the emphasis these Conventions give generally to protecting creative effort, the need for exceptions has been recognised. The Berne Convention, for example, in Article 9(2) provides:
This three part test is also included in Article 10 of the Copyright Treaty. This will have the result of ensuring that exceptions to copyright protection may continue, but difficulties of their application to material in digital form remain unresolved. The normal exploitation of works will certainly change as copyright owners seek to deliver material over computer networks. The scope of what may be privately copied has increased dramatically. The substantial increase in the ownership of personal computers further adds to the ability of individuals to copy material available in a digital form, particularly literary works. The normal means of exploiting works on-line is likely to be through transmissions of goods to the personal computer of the individual consumer. This will lead to discussion as to the scope of any existing exceptions should they conflict with Article 10 of the Copyright Treaty. For example, libraries seeking to provide material via digital network to individuals are also likely to impair the market of the copyright owner. If publishers and collecting societies are successfully able to collect moneys for such copying, Article 10 would suggest than exceptions to the copyright owner's rights will have to be reduced to allow for copyright owners to satisfactorily exploit their works. 5.2.1 Other Relevant International ObligationsAustralia is a signatory to other international agreements that may impact on how copyright laws are drafted. For example, Article 19 of the International Declaration of Human Rights provides that "(E)veryone has the right to freedom of opinion and expression…and to seek, receive and impart information and ideas through any media and regardless of frontiers". Similarly, Article 19 of the International Covenant on Civil and Political Rights provides that "(E)veryone shall have the right to freedom of expression…to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice." These two provisions could be viewed as significant if rights under the Act were strengthened to the point that barriers were present to accessing or using information protected by copyright. The importance of Australia's international obligations should not be underestimated, and are likely to increase in importance with Australia's reputation as a reliable and responsible trading nation being in part dependent on sufficient compliance with international conventions. [25] The High Court has recently re-emphasised the significance of Australia becoming a party to an international agreement. In Immigration and Ethnic Affairs v Teoh [1995] 69 ALJR 423, the High Court stated that
The High Court added that if there is ambiguity in a relevant statute, the Courts should favour a construction which accords with Australia's international obligations.([1995] 69 ALJR 423 at 430) Given the many confusing elements of the Australian Copyright Act, including fair dealing, it may be that the Commonwealth Government will need to re-evaluate Australia's international obligations upon the Copyright Treaty being ratified. 6. The Future Of Fair Dealing: Current Reform Proposals And Suggestions For The FutureCopyright reform has traditionally been reactive rather than proactive. The development of new ways of expressing and communicating ideas will always occur ahead of legislative change. However it is true that copyright laws and policies have, in the past, generally adapted fairly well to new uses of creative works. For example, the development of photography, sound recordings, broadcasting and photocopying technology have all caused tension to the then existing copyright laws. Those who believe that copyright law will evolve without serious difficulty in the new digital environment will point to this historical experience to argue that copyright can continue its evolution without radical alteration. Others have described the onset of digital works as creating a crisis which current laws are inadequate to deal with, and the apparent rush to draft new treaties to ensure copyright protection is extended to digital works indicates that there are many at an international level that share this view. [26] It is the current perception of many law reform bodies that what is necessary is "technology neutral" legislation so that future copyright laws reflect policy without being dependent on today's technology. Notable in this regard in other countries has been the work of the US Information Infrastructure Task Force with the 1995 release of its White Paper, the Commission of the European Communities, which in 1995 released a Green Paper on Copyright and Related Rights in the Information Society, and the on-going work of WIPO. The importance of exceptions such as fair dealing will continue to be given a high priority by all such organisations. In Australia, these issues have or are being examined through the work of the CLRC and, to a lesser extent, the Copyright Convergence Group. At the time of writing very little at a legislative level has occurred. This may be a result of the Commonwealth Government's indifference to reform of copyright laws, but it may also be partly due to a "wait and see" approach being taken in relation to the new Copyright Treaty and how it is received in the international community. The importance of US trade policy to Australia means that any changes made by the US to their domestic copyright laws may well be mirrored by Australia. Indeed the threat of incurring the US "Special 301 Sanctions", or being included on the US Trade Representative's 'Priority Watch List", as a result of copyright laws being perceived as unsatisfactory, is the risk any country takes when amending its intellectual property legislation. [27] Why is it that reform to copyright laws are viewed as necessary? One explanation is that pressure has been placed on governments by rightsowners and those who represent them. Fear of losing revenue to unauthorised uses of material is largely the basis for rightsowners seeking expanded protection, and decreasing the instances where users can benefit from unremunerated access and use. However, more cynical observers could point to the potential for rightsowners to earn significantly more revenue from the potential expansion for protected uses of works in digital form as the catalyst for their seeking reform, rather than any serious concern as to present levels of protection inhibiting the incentive to create. 6.1 Australian review of the Copyright ActIt has been well recognised by both the present government (see Coalition Policy;1996a), and the previous Labor government, that the increase in the use of material in digital form, and the length of time since the enactment of the Act, has meant that urgent reform of the present law is required. However, at a legislative level little has yet been done, and there appears to be some uncertainty about just how reform of copyright law is to be undertaken. The previous Labor government in 1995 asked the CLRC to carry out a review of the Copyright Act, with aims of simplifying the Act and making it more technologically neutral (Kerr D; 1995). This was to be the first time since the 1959 report of the Spicer Committee that Australia's copyright law had been reviewed generally. The main purpose of the review was to consider and build upon issues raised in the Copyright Convergence Group's (1994) report entitled Highways to Change . That Group recommended major changes to the Act on the basis that "(I)n the new communications environment, it is no longer possible to adequately protect copyright owners or to facilitate the development of industries based around the exploitation of copyright material under the existing Act."(Copyright Convergence Group; 1994, p24) More specifically, it was the CCG that first mooted in Australia a broad-based right of transmission to the public. It would appear the intention of the Commonwealth Government to adapt current fair dealing principles to use of copyright material in a digital form. In its 1996 policy statement, "Australia Online", the Coalition said,
More recently, in January 1997, the CLRC released an Issues Paper, Simplification of the Fair Dealing Provisions of the Copyright Act 1968 which appears to indicate that the Committee accepts the need for a defence of fair dealing. Rather than seeking to provoke debate about the necessity for fair dealing, the Committee request submissions only on how best to simplify the provisions and put forward the suggestion that Australia implement a provision similar to the US fair use provision in section 107 of the US Copyright Act. This would suggest that user groups in Australia have already achieved considerable success in convincing the Australian Government that drastic reform to the fair dealing provisions is unnecessary. 6.2 Retention of Fair Dealing - Suggestions for the FutureAs outlined already, the concern for copyright owners should fair dealing continue is that technology will allow users to harm the copyright owner's market through the cumulative effect of individuals accessing works via personal computer. Fair dealing, it is argued, was for another age when to copy print material was either slow and mechanical, or the copy that resulted was of such inferior quality to the original that it was unlikely that, by allowing such copying, any serious inroads into the copyright owner's market would occur. However, it is argued, to continue with the present arrangement has the potential to do just that. The alternative of repealing fair dealing laws altogether does not appear to be a suitable option. It seems difficult to justify, from the perspective of the public interest, a greatly enhanced level of copyright protection without some entitlement of unremunerated access. Operating as an economic incentive to create, and not to promote the interests of copyright owners, copyright policy should continue to balance the rights given to copyright owners with the public interest in being able to access those works, and in particular, the ideas within those works. If valuable works of authorship were optimally to be kept secret, and access restricted, there would be little need for copyright protection. The doctrine of confidential information combined with restrictions imposed by contract would be enough. With this in mind, the following suggestions for reform are submitted for consideration. 6.2.1 Broaden the concept of fair dealingThe approach that has been suggested by Sir Anthony Mason (1996) and the CLRC (1997) is to expand the concept of fair dealing and model it on the current US provisions. [28] As discussed above, the factors of the US provision are very similar to those in sub-section 40(2) of the Act, but instead apply to all applications of the doctrine without the categories that limit the circumstances of fair dealing under Australian law. Excluding the existing categories would have the benefit of allowing fair dealing to develop on a flexible case-by-case basis, with the judiciary shaping the doctrine in its application to uses of new media. For example, the reliance that will be placed on digital media for receiving and disseminating information, together with new forms of appropriating existing material into art, could justify certain uses presently not permitted without permission as being deemed a fair dealing. This would seem particularly appropriate in cases where no significant economic harm is suffered by the copyright owner. In this regard the Australian judiciary may be able to look to relevant US decisions. Fulton (1996) has noted that the facilities brought by technology will tend to shape the concept of fairness. New concepts of what constitutes research, for example, could be treated as analogous to dealings with paper based material. [29] To essentially maintain the status quo, but with fewer restrictions, would respect the ability of the doctrine to change with new technological developments. There is little disagreement that the factors set out in s.40(2) are sensible and ensure that the market of the copyright owner is respected. To apply those factors to all situations of fair dealing would therefore be an appropriate legislative development. 6.2.2 Copying from within librariesAnother alternative could be to restrict a fair dealing with digital works to the physical proximity of any library or educational institution. People throughout NSW can already read more than 1000 journals from around the world via computer screens at local public libraries and this will increase (McIntosh T; 1996). Individuals could warrant on screen before downloading works for browsing or copying that they wish to view the work for their research or study, or any other existing category of fair dealing, and will not re-transmit the work. If, as seems likely, technology provides for instantaneous licence fees to be paid when a work is downloaded, then such fees could be waived if access was made from a library terminal. Copyright owners could still be remunerated for such use under a variation of the public lending right scheme which operates to compensate authors for books borrowed from libraries. 6.2.3 A statutory licence for usersAnother compromise would be to substitute fair dealing for a statutory licence for copying for certain purposes. As with the compulsory licence scheme for educational institutions, any work would become available to be copied for defined purposes such as research, study, criticism or reporting news provided that equitable remuneration is paid. Equitable remuneration could be determined by the Copyright Tribunal with groups such as those representing libraries framing the arguments on behalf of users. Alternatively, the Act could allow for a judicial determination that copying of a work is "fair", but also that some compensation should be provided to the copyright owner. Terms could then be fixed by the court that are reasonable to both parties. This would then create a precedent binding on future similar uses. Ginsburg (1993) has argued that a compulsory licence regime in a digital environment might split the difference between user claims to free access and publisher initiatives to charge for all uses. In addition, Ricketson (1994) has claimed that although copying for use within scientific or research institutions may not conflict with the normal exploitation of the work, such use may unreasonably prejudice the legitimate interests of the author unless equitable remuneration is paid. 6.2.4 Payments made from advertisingThere is every likelihood that the Internet will become akin to being one channel among many on television. Many would describe it as already being very close to that position now. This has, and will, provide opportunities for advertising to become the dominant means of supporting content. Rather than charging per access of each item of copyright material, copyright owners may need to resort to the more traditional means of obtaining revenue from charges levied from advertising sources. Exceptions such as fair dealing could then continue as little economic harm could be done to the copyright owner. There will still be piracy, but the incentive to do so is reduced because access would be free, or based on a rate akin to that applied for accessing cable television. A statistical sample like that used to survey television ratings could be relied upon to gauge the most popular sites, with the owners of the site benefiting from increased shares of the royalties. Obviously access to television is not charged, and why should it occur in cyberspace. Of course such a scheme presumes that advertising will be ubiquitous, but if there are any certainties related to the Internet it is surely that. 7. ConclusionDespite the prophesies of some that copyright has outlived its usefulness, (see Barlow J. P;1994) monopoly rights created by statute for digital, and non-digital, products will continue as the most desirable method of encouraging the creation of content for digital products. Less certain is whether copyright law can continue to support broad exceptions allowing unremunerated use of copyright material. Whilst fair dealing and its statutory equivalents have been recognised by courts around the world as a significant component of copyright law with respect to paper based works, less support has been advocated for its role in the digital environment. Copyright owners in particular see the current spate of reform as the opportunity to shape a revised copyright law providing new rights for owners and a reduced capacity for users to access and use copyright material. What appears to be missing from the debate thus far is a clear vision as to the policy guiding the reform of copyright law, and how this policy may differ from the traditional justifications for providing property rights to creative endeavour. The importance of fair dealing is to provide a balance between the considerable rights of the copyright owner with the public's justifiable interest in being permitted the free use of copyright material for certain purposes. Although Australian copyright law requires both simplification and technological refinement, there is little evidence that this public interest has diminished, and accordingly, should continue to be reflected in any legislative revision. The author's views do not necessarily reflect those of his employer. 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[2] Sections 103A, 103B, 103C and 104 apply to audio-visual items, and section 112 allows for the copying of the published edition of a work if the work is being copied under one of the provisions applying to works. [3] See, eg, Gyles v Wilcox (1740) 2 Atk 141 and Tonson v Walker (1752) 3 Swans (App) 672. [4] Although in the case of Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39, it was argued, albeit unsuccessfully, that the Court should "find" a separate category of fair dealing for political discussion (see University of New South Wales v Moorhouse [1975] 133 CLR 1 at 12). [5] (1990) AIPC 90-678, p. 36, 330 see also Television New Zealand Ltd v Newsmonitor Services Ltd ("Television New Zealand") 27 IPR 441 where Blanchard J of the High Court of New Zealand held that the words "research" and "study" in the New Zealand equivalent of section 40 should be defined by way of their dictionary meanings. [6] This is most likely because "facts" are not seen as original and therefore ineligible for protection, see the White Paper; 14. [7] American Geophysical Union v Texaco, United States Court of Appeals, Further Amended July 17, 1995. [8] 1996 WL 54741, *11 6th Cir. 1996;Electronic citation:1996 FED App.0046P (6th Cir.). [9] Princeton University Press v Michigan Document Services, Inc., Electronic citation: 1996 FED App. 0357P (6th Cir.) Decided 8 November 1996. [10] Although an acknowledgment is not necessary if the copy is for the purpose of, or is associated with, the reporting of news by means of broadcasting or in a cinematograph film - sub-section 42(1)(b). [11] Which Mason J limited to sections 41 and 42 of the Act, but would most likely apply also to section 40 of the Act. [12] See Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 ("Australian Capital Television"); Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 and Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 272. [13] Lyman has commented that "net-culture - if that isn't an oxymoron - has become hostile to the concept of intellectual property…[and] although the Internet has become more sociologically diverse, it still reflects the academic view that knowledge is properly governed by a gift culture in which each of us gives away what we know for free, and takes what we know for free…" Lyman P; 1995. Pp33-35. [14] The system of legal deposit is another important policy designed to ensure access to publications, and likely to become more important for digital information, see the National Library of Australia; 1996. [15] Other than those protected by other forms of protection such as patent law, or contract. [16] See , for example, the recent decision of the Federal Court in Data Access Corporation v Powerflex Services Pty Ltd (1996) 33 IPR 194 which has considerably increased the level of protection for computer software. [17] [1993] US App Lexis 78 2 at 7. The CLRC has doubted the applicability of the decision in Sega v Accolade to Australian law because it considered that fair use was in certain respects different to and broader than fair dealing, (CLRC; 1995, para 10.28.) [18] Described in CLRC;1995 para. 10.22 as being "the study or analysis of a computer product (including a computer program) in order to reveal the underlying idea or principle on which it operates." [19] Ibid, para 10.26 although the CLRC doubted that s.40 of the Act would allow reverse engineering primarily because of s.40(2)(c) which the CLRC said would weigh against a conclusion that all types of copying in the course of reverse engineering could be justified as fair dealing. See also the comments of Evans G; (1994;p56) where he also considered s.40 to be too narrow to support a successful defence of reverse engineering of a computer program. [20] Reverse engineering is now permitted for interoperable interfaces in the UK following the EEC Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs. See the Copyright (Computer Programs) Regulations 1992 (UK).effective 1 Jan 1993. [21] Eg: Sega Enterprises Limited v Galaxy Electronics Pty Limited, 35 IPR 161; Autodesk v Dyason (1992) 173 CLR 330. [22] On this point, see the decision of the Full Federal Court in APRA v Telstra Corp Ltd (1995) 31 IPR 289 in which the Court took a very wide view of what constituted the copyright owner's public for the purpose of interpreting the meaning of "broadcast" and the article by Dreir, T; 1993. [23] The Trade Related Aspects of Intellectual Property Rights (TRIPS) was concluded at the Uruguay Round of the General Agreement on Trade and Tariffs (GATT). [24] Concluded at the WIPO Diplomatic Conference in Geneva on December 20, 1996, but yet to be signed and ratified by Australia. [25] In 1993, Australia had been included on the US Trade Representative's 'priority watch list'. One of the reasons for this inclusion was because the US feared that the CLRC would recommend weakening protection for computer software in their Report on Computer Software Protection. Australia was taken off this list in April 1994, CLRC; 1994, p30. [26] The notes to the proposed treaty on Certain Questions Concerning the Protection of Literary and Artistic Works To Be Considered by the Diplomatic Conference say that the proposed Treaty includes "solutions to urgent questions raised by the technological developments", para 0.05. [27] A good discussion of US negotiation processes and strategies under the Special 301 provisions is contained in (Liu P; 1994, p87). [28] "If the fair dealing exception is to be changed, it should be extended along the lines of the flexible American 'fair use' exception. That would permit the use of copyright material for important public purposes." [29] See the dissenting judgment of Jacobs J in Texaco 29 IPR 381 at 410 where he likened the photocopying for research purposes as a "technologically assisted form of note-taking". |
