Fair Use in Australia? How Knowledge Can Overcome Moral Panic

by Patricia Aufderheide

In research just published in the International Journal of Communication, American University Ph.D. student and lecturer Dorian Davis and I found a big hole in the public discussion of Australia’s copyright reform—one that can be filled with actual information. The problem we discovered is one that afflicts many public discussions of copyright reform.

Australian government agencies have held inquiries over the last few years, to assess public opinion about copyright reform. One big question is how to design exceptions to the long, strong copyright monopolies currently written into both national law and international treaty agreements. In the U.S., fair use is the biggest such exception.


Fair use has permitted the development of, among other things, off-air recording devices starting with the VCR, Google and other search engines (they have to copy in order to search and quote in your results), and a diverse journalistic landscape. Remixes and mashups are only some of the recent ways people are using fair use in a digital environment. (Their analog-era predecessors used it for collages, critiques, parodies, appropriation art and much more.) Fair use is immensely valuable to U.S. business—The Computer and Communications Industry Association estimated in 2011 that even in the Great Recession industries dependent on fair use contributed close to $5 trillion to the U.S. economy.

Now governments across the globe are beginning to wonder if they should also consider importing fair use into their copyright policies, in order to provide an adaptable, flexible way to confront constant digital change and encourage innovation.



Currently Australian law has a highly limited form of fair dealing, which is tailored to specific uses, such as research and certain kinds of journalism. As the Sydney Morning Herald’s Peter Martin noted, no Australian firm could create a search engine, which isn’t accounted for in fair dealing. Many daily computer functions, including backup, involve copying that is technically illegal. Ordinary users technically violate copyright all day long. Schoolteachers can copy some text without licensing it into their paper exams, but not the same text online.

Our study looked at how the copyright debate is framed today in Australian inquiries. We looked at which organizations, representing which kinds of interests or activities, made what kinds of arguments in two of the inquiries.



We found that on the question of whether Australia should introduce fair use, groups sharply divided. The tech sector, government administrators, librarians and academics largely offered pro-consumer arguments. They often argued that fair use, which asserts general principles, would be more adaptive, encouraging innovation and experiment, benefiting consumers through growth of enterprise. Opposing fair use were publishers and other major media companies and their representatives, with some unions, especially teachers’ unions, and collecting societies (brokers that, like ASCAP and BMI in the U.S., collect and redistribute licensing revenues). They argued that fair use would introduce uncertainty because it would be new and unfamiliar; that authors (and by extension other creators) could lose licensing revenues; and creators should retain control of their work.

So the argument ended up being posed as: Consumers versus Creators. This is a recipe for moral panic, which as Bill Patry has argued, is a plague afflicting copyright debates internationally. It is a false opposition. Almost everyone is both a consumer and creator. So the real problem isn’t, which side are you on? It’s about the costs and benefits of different approaches. To do that you would need to know something about the costs and benefits of today’s approaches in the creative process.



In the inquiries we examined on fair use, we found that the actual creator of new culture, talking about the creative process, was strikingly absent. Almost no creator, with the exception of some academics, spoke to the process of making work, and the way copyright helps or hinders that.

Policy makers need to hear about the creative process to understand the implications of any change to today’s arrangements. And it’s hard to get. Individual creators—filmmakers, dancers, playwrights, designers, visual artists, musicians—may be too busy making their work to focus on a governmental inquiry. Creators of emergent practices (the remixers, the samplers, the digital storytellers, the performance artists) are often entirely unorganized. And then there’s the really critical constituency—people who haven’t made anything yet, the people in the future you are trying to provide for with foresighted policy.



New Zealand is also discussing how to adapt copyright policy to a fast-changing, global culture. What their government did, though, was to commission original, independent research on actual creative practice today. Among its many rich findings are the costs of limited access to unlicensed copyrighted material. As I noted in an article on the report for the National Business Review,

Filmmakers are forced to go to physical archives when they could be looking online; they can’t use material where the owner can’t be found; they’re reluctant to make work that involves a lot of quotation because of both expense and the fact that licenses can be limited.  Authors must spend large chunks of time hunting down copyright owners for work they quote, and the evolution of ebooks—which hold the promise of multimedia—is affected. Librarians and archivists are frustrated because they would like to digitize their collections and make them available; museums and galleries face some of the same challenges, with digital innovation just out of their reach. Budding visual artists are running scared of copyright when they think of new work to do, or producing work they’re not sure is legal.



It’s not surprising that this side of creative experience isn’t documented by collecting societies or publishers. It’s the creators who feel the pinch, and they might not even know there’s an alternative approach. So independent research that provides reliable information on current practice is a valuable tool for policymakers and stakeholders alike. Our research into the Australian inquiries shows the gap in understanding created by its absence.  And it has inspired us to take another step.

At CSMI we will explore, with the assistance of a Fulbright Senior Scholar grant I’ve been awarded, creative practice in Australia. With Australian input from Queensland University of Technology, where I’ll be based, and a variety of Australian creator organizations, we’ve designed a survey focused on Australian and New Zealand creatives. Although not as extensive in its reach as the New Zealand study, it could provide some useful information on today’s practices, their benefits and their costs. If you have a friend in Australia or New Zealand who can take a few minutes to take it, please pass along the link:  http://tinyurl.com/gwbwof5.

Australians may eventually decide that fair dealing as currently designed is suitable to its economy and culture. They may decide, as the Canadian government eventually did, to tweak its fair dealing to be far more flexible. They might, as Israel did, adopt U.S.-style fair use. Whatever they decide, it will matter most to them. Whatever is ultimately decided will affect the quality, quantity and very nature of Australian culture from that moment onward. It would be good to proceed with some grounding in actual experience.


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