Australia: Is fair use coming to Australian copyright law?

Last Updated: 9 June 2013
Article by John Collins

Australia's copyright laws could be in for a major shake-up, including the adoption of a US-style fair use exemption, if the proposals in the ALRC's long-awaited discussion paper, "Copyright and the Digital Economy", are adopted.

Another key ALRC proposal tackles the retransmission of free-to-air broadcasting, a particularly high-profile issue since the Optus TV-Now case.

The introduction of a US-style fair use exception

The ALRC proposes repealing all the current exceptions in the Copyright Act and replacing them with a broad and flexible fair use exception, a concept derived from US law.

The Copyright Act would contain:

  • an express statement that a fair use of copyright material does not infringe copyright;
  • a non-exhaustive list of the factors to be considered in determining whether the use is a fair use ("the fairness factors"); and
  • a non-exhaustive list of illustrative uses or purposes that may qualify as fair uses ("the illustrative purposes").

The non-exhaustive list of fairness factors are listed as:

  • the purpose and character of the use;
  • the nature of the copyright material used;
  • in a case where part only of the copyright material is used葉he amount and substantiality of the part used, considered in relation to the whole of the copyright material; and
  • the effect of the use upon the potential market for, or value of, the copyright material.

The non-exhaustive list of illustrative purposes listed includes:

  • research or study;
  • criticism or review;
  • parody or satire;
  • reporting news;
  • non-consumptive uses, such as caching, indexing or data or text mining;
  • private and domestic use, such as time-shifting or format-shifting, data backup;
  • quotation;
  • education; and
  • public administration.

These changes are probably the most contentious in the Discussion Paper. Rights holders have identified uncertainty leading to higher transaction costs, including more litigation, as a likely result of a fair use regime. The ALRC however argues that the current regime is already uncertain, and that the benefits of a fair use regime, including acting as a spur to innovation, will outweigh any costs.

Statutory licences

The ALRC has recommended that certain statutory licence schemes provided for in the Copyright Act should be repealed and that licences for the use of copyright material by governments. educational institutions and institutions assisting persons with a print disability should be negotiated separately.

Copyright, broadcasting and the internet

The ALRC proposes that the broadcast exceptions in the Copyright Act should be extended to apply to other forms of communication to the public, including internet transmissions.

This is one of the most complex proposals in the Discussion paper, as the ALRC acknowledges, and it is not in final form. The ALRC is seeking views on how this would work in practice, such as:

  • should the scope of the broadcast exceptions be extended only to the internet equivalent of television and radio programs?
  • should on demand programs still be excluded from the scope of the broadcast exceptions, or only in the case of some exceptions?
  • should the scope of some broadcast exceptions be extended only to content made available by free-to-air broadcasters using the internet?

Copyright and broadcasting: retransmission of free-to-air broadcasts, including over the internet

Pay-TV and other content providers currently have some rights to retransmit free-to-air broadcasts without infringing copyright.

In considering this issue, the ALRC was slightly constrained because it crosses over into territory outside its terms of reference. It therefore has put forward two reform options:

Option 1: Repeal both the free-use exception applying to broadcast copyright and the remunerated exception in relation to underlying rights. Retransmission would then only occur to the extent there was negotiated agreement between broadcasters, retransmitters and the underlying copyright holders.

Option 2: Replace the free-use exception for broadcast copyright with a remunerated exception, similar to that which would continue to apply to the underlying rights. It says this would continue the existing retransmission scheme while providing some recognition for broadcast copyright.

The ALRC determined that if Option 2 is chosen, or the existing retransmission scheme is retained, retransmission "over the internet" should no longer be excluded from the scheme, and the existing scheme should apply to retransmission by any technique, subject to geographical limits on reception. Alternatively, if the "over the internet" exclusion is retained, its scope should be clarified, in particular in relation to internet protocol television.

Libraries: e-works and the preservation of copyright material

The ALRC has proposed that libraries would only be able to supply copyright material in an electronic format to users for research or study if it has taken measures to:

  • prevent the user from further communicating the work;
  • ensure that the work cannot be altered; and
  • limit the time during which the copy of the work can be accessed.

The ALRC also recommends amending the Copyright Act to create a new exception that permits libraries and archives to make copies of copyright material for the purpose of preservation. This will not apply to copyright material that can be commercially obtained within a reasonable time at an ordinary commercial price.

What next?

The due date for submissions on the Discussion Paper is 31 July 2013.

Rights holders will need to consider the impact of these changes very carefully, particularly the fair use exemption, not only when it comes to protecting their intellectual property but also in connection with using copyright material.

The proposed reforms will, if implemented, have significant implications for a host of other sectors, including commercial free-to-air and subscription broadcasters, educational institutions, the public sector and people with disabilities.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.