Recent developments in the United Kingdom may be particularly instructive for Australia as it considers how fair dealing exceptions should adapt to the digital age.

In May 2011, Professor Ian Hargreaves recommended that the UK expand the exceptions to copyright infringement to take advantage of rights permitted under EU law and to allow copyright law to evolve with changing technology, without adopting a broad US-style fair use exception that would be unlikely to be 'legally feasible' in Europe.  In response, the UK government agreed that it would implement 'a substantial opening up of the UK's copyright exceptions'.

This is proposed to be accomplished by the passing of five statutory instruments that introduce new exceptions to copyright infringement. The instruments will permit:

• the copying by individuals of their own copies of copyright works and recording of performances for private, non-commercial use, including back-up copies and copies made for the purposes of format-shifting and storage (as well as the grant of remedies where measures imposed by copyright owners restrict the making of such personal copies); 
• the use of quotations that are fair dealing and are accompanied by a sufficient acknowledgement; 
• fair dealing with a work for the purposes of caricature, parody or pastiche; 
• the making for the personal use of a disabled person a version of a work that is able to be more fully enjoyed by the person, if an accessible copy is not commercially available on reasonable terms; 
• various uses of works for the purposes of research, private study and education, to allow computational analysis for non-commercial research, and by libraries, archives, museums and educational establishments; and 
• acts done to material that is open to public inspection pursuant to a statutory requirement for the purposes of facilitating the inspection or the dissemination of information in that material about matters of general scientific, technical, commercial or economic interest.

It was intended that all of these instruments would come into force on 1 June 2014.  However, the Joint Committee on Statutory Instruments did not recommend the passing of the instruments allowing private copying, quotation and parody, although the government hopes to implement them later.

The Joint Committee on Statutory Instruments has not stated publicly the nature of its concerns about these instruments. The main concerns that appear to have been raised about these exceptions during the course of consultations are: 

In relation to the personal copying exception: 

• the potential damage to rights-holders, especially where licences to format shift was already being offered. Under EU law, compensation is required unless there is minimal harm.  The UK government has argued, however, no compensation is required (for example, through a levy on blank media and copying devices) because the narrowness of the exception means that any harm will be minimal;
• the restriction to the individual, when copying within households and other private groups is also widespread and does not cause clear harm; and
• the adverse effect on the use of technological protection measures to prevent unlawful copying;

In relation to the quotation exception:

• the impact on rights-holders whose business models rely upon licensing of extracts of works (for example, film archives and news content providers); and
• uncertainty about the scope of the exception (for example, the length of extracts that would be permitted); and

In relation to the parody exception:

• the fact that comedy producers could use the exception to avoid paying licence fees, when this would not be available to persons creating serious versions of works; and
• the lack of any evidence that the exception would have any economic benefits.

If all of them are enacted, the new UK exceptions will allow a number of uses of copyright works that occur commonly but may currently amount to infringement.  They are broader than the exceptions under Australian law and would (if adopted) fill some gaps that arguably should also be filled in Australia. They are not, however, as broad in scope as the general fair use exception recently proposed by the Australian Law Reform Commission, which would non-exhaustively list a number of the UK's permitted uses as illustrative purposes that may qualify as fair use but also allow other uses that amount to fair use.

If Australia and the UK do continue down their current paths, it will be interesting to see which approach better accommodates future changes to the ways in which people wish to legitimately use copyright works, while still providing sufficient certainty for both owners and users of copyright material about the scope of their rights.