The following excerpt is from Gina Fairley, ‘Conflict over copyright – is it fair?’, ArtsHub, Friday 13 June 2014

The arts sector is deeply divided over the introduction of fair use into the Australian Copyright Act, as was evident during the VIVID panel discussion on copyright in the digital economy.

The Australian Law Reform Commissions Review (ALRC) into Copyright and the Digital Economy received more than 800 submissions. It was presented to the Attorney General in November 2013 with the recommendation that Australia introduce fair use provisions to the Copyright Act similar to those of the United States.

A fair use system would remove the need to gain specific permission to use an artist’s work without permission provided the user can show the use was ‘fair’. What is fair would need to be based in community expectations and previous practice through common law but would not be defined in law.

The recommendation has received a mixed reception from the arts sector, as was clear from the recent VIVIID : IDEAS panel discussion. If the assembled professionals were a reflection of the broader views held within the sector, then they are both passionately vocal and rigidly polarised.

At one end of the specrum, the Art Law Centre of Australia calls fair use ‘an erosion of artist’s rights’. At the other, the ARC Centre for Excellence and Creative Industries and Innovation says that ‘it is essential for the lifeblood of democracy, commerce and the development of new knowledge’.

The key question underlying the conflict is how we navigate use within a world of ever-expanding access and circulation via technology. Can “change” be adequately dealt with through existing fair dealing exceptions and new legislation, which is a lengthy parliamentary process, or does the technology demand a fair use of copyright material be recognised?