Updating operating system now: where's our Fair Use?

“For copyright to achieve its purpose of encouraging creativity and innovation, it must preserve and promote ample breathing space for unexpected and innovative uses.”

Copyright law in Australia sometimes feels like OS updates on your phone. The frequent little notifications pop up; letting you know there’s an update available, it’ll make everything less glitchy, and really, you should install it now.

But you’ve picked up the phone to do something urgent, or you’re on mobile data, or you’re late to pick up the kids so you clear the notification, making a mental note to remember to install when you get back home and have a spare moment.

Every year or so Australia has a recommendation from a parliamentary committee, or task force, or law reform commission that says, in essence ‘this copyright law is not the latest version, you should update it. It’ll make the whole system less glitchy and more efficient’.  And in the same way that delaying installing phone updates is a spectacularly bad idea, it really is time to take some of these recommendations seriously, instead of hobbling along and hoping for the best.

The ADA Copyright Forum on the 13^th of February will mark a year since the Australian Law Reform Commission’s latest reminder went public.  478 pages of careful reasoning and analysis that concluded the current system is no longer fit for purpose and needs an update. 

They recommended a number of upgrades to the base system, but the key one was the introduction of a flexible ‘fair use’ exception.

An exception to copyright gives users space to do things, like copying or communicating works, that would otherwise be an infringement.  Currently the Australian law has a number of specific exceptions, for example a student can copy 10% of a book for personal research or study or a person can transfer a legally owned VHS to a tablet for their personal use. But because the exceptions are so specific, a lot of non-harmful and socially beneficial actions fall outside their limits. A student can copy 10% of a book, but a teacher-librarian would have to pay if they did it on their behalf. A library may be able to digitize and make available an 18^th century settler’s diary, but a local historian would infringe if they put an excerpt into a book.

Fair use however moves from the specific to the principled. Instead of asking if the technology, or the person, or the reason fits in the wording of the section, fair use weighs up the base principles of copyright. In essence it asks:

• What is being done? (purpose and nature of the use)
• What is being used? (nature of the work)
• How much is being used? (the amount and substantiality of the work)
• What is the effect on the rightsholder? ( the effect on potential market or value of the work)

Being principles based, fair use is adaptable. Instead of having to update frequently, fair use should be the long-term fix, a patch flexible enough to cope with changing technology and markets.

In the USA, one jurisdiction that already has fair use, the library and archive sector increasingly relies on it to unlock their collections, encourage meaningful interaction with culture and heritage and provide access to information.  In a joint submission to the ALRC inquiry, the American Library Associations[1] noted that:

“U.S. libraries have relied on fair use in creating e-reserves of teaching materials, indexing material for full-text search, digital preservation, and providing access to users with disabilities.”

Many of these uses were affirmed in the Hathi Trust case, where libraries’ full-text digitization of collections for certain purposes was held to be fair use.  As well resurrecting out-of-commerce works and unavailable works, the decision also has potential to support public good projects, such as making books accessible to the blind. Meanwhile, in Australia, university libraries have to redigitise works from the original each time a student with special needs requests a chapter of a book.  

The library and archive sector have been strong advocates for copyright reform over a number of years.  With any luck 2015 will be the year that the updates are installed.