Fair’s Fair (Except When It Isn’t): The Effectiveness of Fair Dealing in the Australian Publishing Industry

In November 2016, the Australian Productivity Commission (APC) proposed a ‘fair use exception to replace the current fair dealing exceptions’ in the Copyright Act 1968 (Cth). The Commission’s recommendation supported the Australian Legal Reform Commission’s (ALRC) findings in its 2013 report ‘Copyright and the Digital Economy’. The Copyright Agency, The Australasian Mechanical Copyright Owners Society (AMCOS), the Australian Publisher’s Association (APA), the Australian Booksellers Association (ABA) and the Australian Society of Authors (ASA) opposed a fair use doctrine and claimed it will negatively impact authors’ earnings and prompt more litigation due to frequent copyright infringement of creators’ works. This conference paper reviews Australia’s current fair dealing exceptions and their place in Australian copyright law. The review asks if legal reform is necessary in the digital era, which appears less influenced by commercial publishing monopolies and more receptive to the collective aims of knowledge sharing and individuals’ derivative uses of intellectual property. The paper explores current industry research, opinions from the various stakeholders in the publishing field, and the likely outcomes from amendments to current legislation.