Intellectual Property Business Law Essay

Question:

How Fair are the Existing Defences to Copyright Infringement in Australian law?

Answer:

The exceptions in relation to the copyright laws which allow people to use the work of another which is protected through copyrights are known as fair dealing. In Australian law a person does not infringe the copyright of another if he uses the work for the purpose of criticism, private study, research, education, news reporting, parody, satire and reviews. The person using the copyrighted work has to observe fairness in this use in order to be able to gain protection under fair dealing[1].

Fair dealing has been provided by Australian copyright legislation for long. The expression was initially used in Australia in Copyright Act 1905 which made Australia the first common law country to include fair dealing.

According to the Copyright Act 1868 section 40-43 the following do not account to an infringement of copyright.

  • Study or research
  • Review or criticism
  • Satire or parody
  • News reporting
  • Legal advice given by the person who practice law, and trademark and lawyer who is involved in patents.

Not all copyright materials fall under the use of such defenses. According to the CA the following copyrighted materials are subjected to copyright[2].

  • Artistic, musical, literary or dramatic works
  • Adaptations of musical, dramatic or literary works
  • Cinematography films, television broadcasts, sound broadcasts and sound recordings.

Copyright aims to protect the work of the author from unauthorized use. However in order to promote fairness in the society and develop trade and commerce the public has been given few rights by the parliament. The use of a copyrighted material by any other person would be totally based on the facts of the given situation[3]. There is a thin line between fair dealing and infringement. The court considers the purpose and nature of work along with the amount of copyrighted work used by the other person just to check if the dealing done was fair or not.

Fair use and fair trading are concepts related to each other with respect to the use of copyrighted materials. However the terms are not synonymous as their meaning is not same in different legal frameworks.


The idea of reasonable utilize has started in the United States. The term incorporates restriction and special case in regards to the utilization of copyright materials. The idea of reasonable use in United States is subjected to open finished exemption which is not constrained to a predefined reason. In the country fair use relates to a combined question of facts and law. The exception of fair use is thus limited to the broad question that whether or not the act as fair in relation to the circumstances. On the other hand the provisions related to fair dealing ate only applicable if the materials have been used for a specific purpose. Similarly if the use does not fall within the ambits of the specified purpose it cannot be regarded as fair use. Thus two questions arise in case of fair purpose whether the use fall within the specified purpose and whether the use accounts to fairness. The exception would only be applicable is the answer to both the questions are positive[4]. Therefore it can be held that the concept of fair dealing is narrower as compared to that of fair use.

The primary reasonable utilize decisions by United States courts can be viewed as a consequence of the United States legal system: the sacred structure (tallying the Principal Correction right of free expression), the specific substance of its copyright law what's more, the more important capacity of judges to expect a dynamic part in the change of answers for mechanical changes that alter copyright markets. In case a reasonable utilize style plan was given in Australia it could have achieved a more broad extent of items being seen by the courts as falling inside that uncommon case. There are most likely going to be by and large contrasting presumptions about what these additional reasons might be. These would should be settled on case by case introduce by the courts. It is possible that the Australian courts working in an other legal system may receive a substitute methodology[5].

To date they have been more stressed with the illustration of statutory game plans and looking for Parliament for unequivocal course on the utilization of authorized advancement law to new development. Any new reasonable utilize sort exception could be read down by Australian courts, particularly in case it appeared to cover with other specific uncommon cases in the Australian Copyright Act.

Some Acts may be permitted as a sensible overseeing or a reasonable utilize. Regardless, different acts permitted as a sensible use in the Unified States may be allowed in the Copyright Act under a specific unique case or statutory allow. Be that as it may, there are complexities. As analyzed over, the Unified States control has been deciphered to allow a couple of businesses that are not secured by exclusion or statutory allow in the Copyright Act. Then again, Australian game plans can be broader than fair use. The statutory licenses for informative use in the Copyright Act give Australian informational associations more broad approvals to use copyright material than sensible use grants to equivalent Joined States associations (however on portion of impartial remuneration for copyright proprietors).Therefore, if the Administration were to consider alterations it may not be a fitting answer for essentially ?'replace?' the reasonable managing special cases or ?'add on?' an open finished reasonable utilize arrangement. The relationship of such a game plan to other uncommon cases and statutory licenses in the Copyright Act would be meticulously considered to dodge issues rising up out of any cover and following intrusion to existing business and approving game-plans. This issue is tended to help underneath. This Section follows possible decisions that the Administration could consider for change of exceptions under the Copyright Act if it picked that definitive change was required.

Option 1

The Copyright Law Survey Board of trustees in its report Disentanglement of the Copyright Act Section 1 suggested that the Copyright Act may be corrected to give a combined and extended reasonable managing arrangement that is less unpredictable, adequately adaptable to adjust to new uses that rise with mechanical advancements, additionally contain enough detail to give valuable direction to both copyright proprietors and clients.

The Copyright Law review Committee's proposition was to:

  • merge the present reasonable managing arrangements in a solitary arrangement,
  • grow reasonable managing to an open-finished model that particularly alludes to the ebb and flow restrictive arrangement of purposes - research or study, feedback or audit, announcing news and expert counsel - however is not restricted to those reasons, and,
  • For the most part apply the non-restrictive arrangement of components accommodated in s 40(2) to all fair dealings.

Under this proposal, the new solidified arrangement would incorporate the exhibit ss 40-43 and 103A-103C. This would keep on providing copyright proprietors along with, clients with a measure of sureness, while additionally giving courts a means of adaptability to choose whether different utilizations would be reasonable. This would allow courts to favor new or minor uses that don't make huge mischief copyright proprietors.

Then again, this choice would require legal elucidation on a case-by-case premise to figure out what, assuming any, new uses are permitted by the combined arrangement. Before the understanding of the courts, there is no real way to know whether acts, for example, time-moving or arrange moving would be legitimate (unless particular special cases for these utilizations were likewise incorporated into the Copyright Act).

Option 2

This alternative would hold ss 40-43 and 103A-103C, and other existing special cases, however include another open-finished reasonable utilize style arrangement. This arrangement would incorporate the non-selective arrangement of variables accommodated in s 40(2) .

The order of an open ended special case would broaden the adaptability of the Copyright Act and, contrasted with choice 1, could show to the courts that the new arrangement is proposed to allow extra uses well beyond those effectively secured by the current Fair dealing exemptions.

Then again, this approach might add to the many-sided quality of the Copyright Act. There would be impressive vulnerability with regards to the extent of the open-finished until case law created. A client considering depending on this special case would need to measure the legitimate danger of conceivable case. Until the extension was translated by the courts, there might be huge interruption to existing permitting game plans. No practically identical purview has sanctioned both particular reasonable managing exemptions and a comparative open-ended arrangement.

Option 3

This choice would hold the current special cases, including the reasonable managing arrangements, while including new particular special cases. This approach would keep up current strategy of giving sureness to copyright proprietors and clients for the allowed acts, at the same time refreshing Copyright Act to incorporate in different ways including normal purchaser ones which don't make huge damage copyright proprietors. For case S 111, the time-moving of radio and TV communication may be changed to permit as a free special case for private usage only. The exemption allowing group moving like the New Zealand approach may likewise be considered. This alternative would not enable a court to choose whether to qualify the minor utilization. At present, innovative advancements may arise therefore the Parliament is required to audit and refresh the Act for future uses.

Option 4

This choice would keep up conviction for proprietors and clients concerning the current reasonable managing arrangements. Likewise, it would make legal some predefined types of private duplicating, (for example, time-moving and arrange moving) by clients and guarantee remuneration is paid to copyright proprietors. It is conceivable under a test of three steps for a legal permit plan to allow an extensive scope of private adapting that can be permitted under at least one special case which does not repay copyright proprietors.

This option moreover would not empower a court to pick whether another or minor use should qualify as a sensible use, particularly where usage is other than private copying. At present, Parliament would be recommended to review and revive the Act as needs be to future uses to which imaginative upgrades may give rise. Among the various exclusions and statutory licenses recorded in Attachment A are crucial extraordinary cases which allow ?'fair dealings?' for particular purposes. What is "fair?" depends on upon the particular conditions; however the Copyright Act gives leads on what is respected sensible in association with dealings of research and study (ss 40(2), (3) and 103C).

The plans are given in two segments of Act, (Part III) gives the capability between "works?" and 'subject matter' (Part IV2). In additional, extraordinary cases to entertainers’ rights in live presentations are overseen Partially XIA (the significance of 'exempt recording' in s 248A (1)).

S 40(1) gives, 'A sensible dealing with an insightful, enthusiastic, melodic or inventive work, with an alteration of an academic, passionate or melodic work, for the explanation behind research or study does not constitute an infringement of the copyright in the work. Section 103C (1) is in similar terms in association with dealings to `audiovisual things' (described as sound recordings, motion pictures and imparts). The Copyright Act sets out a non-specific course of action of components to be considered in choosing on the off chance that one sort of overseeing (i.e. reproducing) of works for research or study is sensible.


Section 103C(2) is in relative terms in relationship with the dealings which 'fluctuate in media things'. Section 248A(1A) is in basically indistinguishable terms in relationship with a sensible administering sound recording for research or examination of live pass on of an execution.

Before 1980, the idea of ?'fairness?' under s 40 was not characterized. Section40(2) depends on suggestion by the Franki Committee3 which was built up in light of worries with respect to clients of copyright material, especially instructive establishments. The Franki report recommendation, authorized in s 40(2), was influenced by the then proposed s 107 of the Unified States Copyright Act relating to sensible utilize, which was preceding the Congress.

In making its suggestion, the Franki Board of trustees perceived that there must be feedback which the standards later ordered in s 40(2) still left impressive space for legal elucidation. In any case, the Franki Panel accepted there were such a large number of components which may be considered in deciding if a specific case of replicating would be reasonable managing that it was very unreasonable to endeavor to evacuate from s 40 the need to consider singular conditions.

Section 40(3) sets out more direction on most extreme amounts of generations that is considered to be a reasonable managing, if they are meant for the motivation behind research or study. In a periodical production recreating the entire part of an article or not more than a `proper part' of a work or adjustment is esteemed to be reasonable, paying little heed to the components to be considered in deciding decency under s 40(2). A ?'reasonable portion?' is characterized non-comprehensively in s 10(2) of the Copyright Act. The definition gives that a duplicate will be a `reasonable part' if the pages replicated, in connection to a distributed release of a scholarly, emotional or melodic work.

In connection to ?'audio-visual items?', s 103C doesn’t give a quantitative test proportional to that accommodated under s 40(3). The Copyright Act don’t contain meaning of the term ?'research or study?'. The courts have reliably held that it is the reason for the individual for managing, as opposed to a definitive use to which the material is put, that is important when evaluating so the managing could be viewed as a reasonable managing with the end goal of research or study[6].

Before 1980 ?'study?' was certified by the descriptive word ?'private?'. The Copyright Revision Act 1980 erased word 'private' from s 40(1) steady with some other proposal made by the Franki Board of trustees[7]. That Advisory gathering considered that the uncommon case was wanted to perceive use of material for private survey from use for classroom rule, yet it saw the refinement as reenacted and difficult to keep up.

The Australian courts are meant to look after the duplicating and other utilize of copyright material with the end goal of business innovative work can be viewed as reasonable managing for study and research. The Australian Law Survey Commission in its Report Quality Licensing and Human Wellbeing, introduced to Government in June 2004, prescribed the Copyright Act to be revised to give that business research is done for the reasons of managing special cases. The Legislature is thinking about that suggestion.


However the amended fair dealing provisions provide a wide ranges of specified purposed to be used as exception. The word dealing in “fair dealing” has the same meaning to the word use in “fair use” without any alternations[8].

The purpose of copy right law is to provide a balance between commercial benefits and necessary use of materials. The law seeks to protect the market against monopoly, failure along with safeguarding freedom of expression. It is not easy to establish a clear distinction between what privileges should be granted to copyright owners and what should not[9]. If excess protection is provided to the copyright owner it would lead to market failure and suppression of creativity on the other hand if adequate protection is not provided the owners would not be entitled to the benefits they deserve. The Copyright Act 1968 seeks to provide adequate balance to copyrights through the provisions of fair dealing. The provisions also seek to strike out ambiguity which surrounded copyright exception[10]. It is being argued by defenders relating to copyright exceptions along with academics that contract law and technology related to copyright is significantly restricting the scope of exception and further harming creative ideas. In adequate harmonization related to exceptions limits the expansion of knowledge related to knowledge based services and goods across Australia[11].

Typically copyright is deemed to be as monopoly which has been sanctioned legally. Thus this feature of copyright acts as an inference in free and competitive market of Australia. These situations are governed by provisions of completion law in Australia. The situations may get worse when the parties who have copyright licenses engage in activities like price discrimination and use of the license terms for unfair purposed. Competition concerns are also raised by attempts of extending copyright terms through royalties[12].

On the other hand people are finding new ways to determine how to manipulate the existing exceptions in order to use them to the deterrence of the license holders. In case too much defenses are provided as in the case of “fair use” people come up with creative ideas not for the use of society but to use the exception to the deterrence of the owner[13]. In Australia the parliament has ensured that the exceptions are only provided for purposes which have no relation to commercial use[14]. The copyright Act 1968 provides exception in in relation to specified purposes and nothing more than that. This step ensures that people are not able to use the exceptions in a way which would infringe the rights of the owners. Educations use has been promoted by the legislation in order to enhance creativity with the help of knowledge. Similarly through the exceptions of review and criticism the parliament protects the freedom of expression of the public[15]. Through the process of news reporting the parliament ensures that the new technologies and discoveries are convey to the public. Thus the Copyright Act 1968 provides adequate protection to copyright holders along with ensuring exceptions in order to maintain a perfect balance.

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