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Copyright-fair-use-scales

Copyright use free of fees or permission

Copyright law has been designed so that only some uses of copyright work require permissions or fees paid.

The law balances the rights of copyright work owners or rights holders with copyright users. The balance is like a scale that has operated internationally and for centuries.

On one side of the scale, copyright owners or rights holders have exclusive legal rights to their work.

On the other side of the scale, copyright users may use copyright work without fee or permission if the use falls within exceptions stated in copyright legislation. Those exceptions and how to use them is the topic of this article.

Technologies for copying and the legal response

Over time the scale tips one way or another, it is not static. The context in which the law operates is dynamic, largely because technology is a moving feast of innovation. Monks used to copy manuscripts by hand. Copyright in the form we know it today first emerged after the introduction of printing. In the modern era there have been waves of new copying mechanisms, which we'll get to. For now note the pattern of change in copyright history as illustrated by these bullet points.

  • To begin with, copyright law is a response, largely in favour of copyright owners, to limit what can be done by users of technologies that can copy work.
  • Copyright law is tough. Infringement by users has serious consequences and owners have many legal remedies, including injunctions, damages, criminal offences, extradition and prison sentences. That's a lot, you don't find that pile of legal armory in many areas of business law.
  • The law is trying to cope with a dynamic technology environment. Information technologies are not static, for 100 years or more they have evolved at an increasingly rapid pace and people use each new information technologies to copy. They copy individually and privately, they copy by selling or transfering copies for commercial gain, they copy by sharing free-of-charge in online peer-to-peer environments.
  • Against this rising tide of copying, copyright owners respond to defend their space. Copyright law arms them with many remedies. However, in practical terms there are increasing challenges because technology used for copying is more pervasive and cheaper. In their attack, copyright owners and rights holders can scale up their attack as follows:
    • starting with demand letters (aka cease and desist letters),
    • seeking interim injunctions, eg court orders requiring a suspected infringer to hand over works and records,
    • ongoing court proceedings seeking compliance or recovery of losses, and
    • if all else fails then demands to law makers to change copyright law to re-balance the law in favour of owners given new user habits and the spread of new technologies for copying.
  • LIGHTBULB MOMENT: Instead of relying just on law, sometimes copyright owners can also respond with creative alternatives to law. Consider here changing an owner's IP strategy and business model. Consider too open source methodologies, open APIs, open innovation, and use of Creative Commons licences (see Creative Commons licences are useful but oversold). Our firm specialises in thinking differently by applying technology, business and management knowledge.

Online technologies are a recurring contemporary pivot point for the balance. Over the past 10 years or so there’s been court case tussles over dollars (yes, everyone's PR is over "principles") over a range of newish technologies. A short list includes - copyright via video sharing on YouTube, copyring via ebook scanning of 20 million books by Google, copying of telephone directories of Telstra, copying of TV broadcasts using a video recorder in the cloud offered by Optus and copyright using BitTorrent and the internet service provider iiNet.

Each of these copyright cases has had mega-dollar commercial implications. Each is a battle where a party has turned to a courts as a forum in which to strike a legal balance for a newish technology context.

This pattern has a century-long backstory. A repeated cycle of challenge and response. Each new technology useful for copying has resulted in a review of core copyright law principles, including interpretation of how the doctrines of fair use or fair dealing apply to copying using new technologies or other mechanisms. The cycle has re-run even before gramophone records and cinematographic films at the turn of the nineteenth century, and then through copying by radio, television, photocopiers, home video recorders, music samplers, file sharing software and other online media. As a more detailed examination of the cycle, we have tracked copyright cases and issues for music technologies from 1979 to date, see - Digital music technology and copyright timeline.

How can you legally copy copyright work?

Commentary so far provides a legal and technology background for the practical guidance we'll now turn to.

Copyright users have two options to avoid claims of copyright infringement. A user must either obtain permission from the copyright owner or controller of a work or, alternative, have a use which falls within the scope of exceptions set out in legislation.

Those exceptions under Australian copyright law are known as “fair dealing” exceptions.

In United States copyright law they are known as “fair use” exceptions, and they are very different in character to those in Australia. Application of the U.S. fair use doctrine in essence comes down to review of the:

  1. purpose and character of the use of the copyright work;
  2. nature of the work of the copyright work;
  3. amount and relative significance of the portion of the copyright work used; and
  4. effect on the potential market for the copyright work.

Australia’s “fair dealing” exception is considerably narrower in scope to the U.S. “fair use” exception. Most recently the exception was reviewed by the Law Reform Commission in its report "Copyright and the Digital Economy".

In contrast to the broader U.S. fair use doctrine, the fair dealing sections in Australia's Copyright Act 1968 (Cth) are distinguished (some say pigeon-holed) on the narrower basis of the purpose for which copying is being carried out by the user:

  • fair dealing for the purpose of research and study (sections 40 and 103C)
  • fair dealing for the purpose of criticism or review (sections 41 and 103A)
  • fair dealing for the purpose of parody or satire (sections 41A and 103AAA)
  • fair dealing for the purpose of reporting news (sections 42 and 103B)

What we do for clients

Recently my firm advised an Australian client, an academic author, on fair use for a work to be published by a U.S. company.  Had the publisher been publishing under Australian law then the “fair dealing” exception would have applied. You can read that in the next article - Applying U.S. fair use doctrine to academic research.

At Dilanchian lawyers and consultants, we advise clients how to best respond to the “fair use” and “fair dealing” exceptions to copyright. Our related work for clients extends to:

  • developing IP strategies and business model innovation,
  • preparing in-house template workflows, agreements, best practice policies and manuals, and
  • preparing copyright guidelines and record keeping practices for companies and organisations.

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