The ALRC explicitly recommended the implementation of a broad fair use exception to copyright infringement, similar to that in the US. In light of this development, the calls for change to the current Australian position, with its limited fair dealing exceptions, are becoming ever louder.
Discussions about fair use occurring across Europe
It is instructive to consider the ALRC's recommendations in light of comparable discussions about fair use occurring across Europe. Except for the UK (where fair dealing exceptions are similar to those in Australia), most European countries are civil law countries primarily relying on statutory provisions. The copyright codes of most European countries do not contain a broad fair use exception; rather, they provide explicit exceptions for specific uses of copyrighted works. Generally these exceptions are construed strictly. The issues being raised by many European scholars are strikingly similar to those being heard in the debate in Australia, among them: Is the law able to keep up with today's fast developing technologies? Does an exhaustive catalogue of narrow limitations and exceptions operate effectively in the digital age?
German Copyright Code: an illuminating example
The current German Copyright Code (Gesetz über Urheberrecht und verwandte Schutzrechte, abbreviated as UrhG) has been in force since 1966. Particularly with respect to the statutory system of exceptions and limitations to copyright infringement, there have only been minor reforms and amendments to the Code since that time. When the Code came into effect, digital technology was in its infancy; there were far fewer communications channels; and it was more difficult for users to access and consume copyrighted works. The advent of the internet irrevocably changed this, as well as users' attitudes towards copyright and copyright infringement (exemplified by rampant digital piracy and calls by a vocal minority for absolute freedom to use copyrighted material on the internet). While it is unlikely (and undesirable) that the minority's view should prevail, there is certainly sense in introducing into German copyright law - a creature of the pre-digital 1960s - greater flexibility to ensure that new uses of copyright works are permitted where such uses do not unreasonably prejudice the copyright owner's interests and rights to exploit their own works.
Call for the introduction of a broad based fair use exception
Hence the call by a number of European scholars for the introduction of a broad based fair use exception in the EU or its member states. Other scholars propose a comprehensive reform of the national systems of statutory limitations and exceptions. The Wittem Group – an international committee consisting of leading European experts on copyright law – has prepared a European Copyright Code with the aim of 'contribut[ing] to the establishment of a body of transparent and consistent copyright law'. This code includes a number of specific limitations as well as permitting other uses comparable to the listed uses, as long as certain requirements are met, to provide additional flexibility not always found in civil law instruments.
The ALRC is certainly not alone in its call for substantive reform on fair dealing and the vexed issue of exceptions to copyright infringement.
