Fair use as a defence was recognized in the UK and generally developed ad hoc.
Fair dealing rights eventually came to be understood as a way CR balances the needs of owners and users – this is achieved by reference to specific nominated exceptions to infringement for:
Research or study;
Criticism and review
Reporting news;
Ftpo judicial proceedings or professional advice
Parody or satire; and
Private copying permitting time/format/space-shifting
The AU approach to this is rather technical/categorical but a narrow approach is encouraged by Art 13 of TRIPS. However this doesn’t prevent adoption of a more flexible approach to determining such cases – for e.g. the US approach which is commonly compared to the AU approach.
To be a fair dealing in AU the relevant use must meet
A benchmark requirement of fairness and
Fall within one of the categories of exception
Recent inquiries to expand this have not had much success however the introduction of parody/satire exceptions did follow after extensive media comment
Relevant provisions:
s 40; s 103C – Fair dealing for purpose of research and study
ss 10(2)-(2A) – ‘Reasonable portion’
ss 41; 103A – Fair dealing ftpo criticism or review
ss 41A, 103AA – Fair dealing ftpo parody or satire
ss 41, 103B – Fair dealing ftpo reporting news
s 10(1) – ‘sufficient acknowledgement’
s 43, 104 – Reproduction ftpo of judicial proceedings or professional advice
s 109A – copying sound recordings for private/domestic use
s 43C, s 47J, s 110AA – Format shifting for private use (books + newspapers + periodicals, photographs, fils)
s 111 – Recording broadcasts for playing at a more convenient time
Pro Sieben Media AG v Carlton UK Television Ltd [1999] FSR 610 Facts: A German TV company claimed the defendants infringed CR by using a 30 second broadcast including an interview and small film of a pregnant British woman (impregnated by fertility treatment with 9 embryos). A gave the exclusive right to broadcast the interview in Germany. The defendants’ program was critical of chequebook journalism. In this case the judge decided that the defendants failed to discharge the onus of proving the extract was included ftpo criticism or review and found the use was not fair in the circumstances. Robert Walker LJ:
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The genuineness of intention of the defendant in serving a permitted purpose affects ‘fairness’ but dealings with unpublished work are likely to always be considered as unfair
Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 The case concerned an interlocutory application for continuation of an injunction to restrain the publishing of certain documents of the plaintiff in certain books, the contents of which were to be serialized in The Age. Mason J set out the facts:
The plaintiff’s case is that it is the CRO in most of the documents in the book, they were classified documents which contain confidential information which if disclosed would prejudice AU relations with other countries, and further tha tit hadn’t authorized or consented to publication. [Claim under s 79] A claim was also made under s 79 of the Crimes Act but the application for injunctive relief under this section was rejected on the basis that the embarrassment to foreign relations flowing was not sufficient to justify protection of the information through injunctive relief. Infringement of copyright His Honour began with the proposition that the publication of these books would infringe the plaintiff’s CR unless a defence could be established under s 41 and s 42. Defence under s 41
Question 1
Question 2
Defence under s 42
CL Defence of Public Interest
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