What is 'Fair Use'
Fair use is an American legal principle that has enabled large enterprises in the US to use copyright material for free. Under Australian law, enterprises pay Australian writers, artists, creators, photographers and publishers to use their work, unless it’s for public interest purposes outlined in the legislation, such as reporting news or parody.
A minority of industry players want to change that, and the Productivity Commission in Canberra recently made recommendations to introduce fair use in Australia.
If fair use was introduced into Australia, there would be less Australian content on our screens, on our bookshelves and in our schools and universities. PwC recently estimated that introducing fair use in Australia could result in a loss of GDP of more than $1 billion.
Would creators prefer to spend time creating, or going to court?
One of the consequences of exceptions like US fair use is uncertainty and unpredictability for content creators.
The filing of copyright court cases in the US is vastly greater per capita than in Australia, and the fair use exception is raised in a significant and growing proportion of them. An analysis of copyright cases filed in the US in 2014 alone showed a defence of ‘fair use’ was raised in 43% of the defended cases. By contrast, an analysis of reported cases of the Australian Federal Court between 2006 and 2012 showed that 94 involved copyright, but only four of those referred to a copyright exception as a key issue.