The ALRC has recommended the adoption of something which, in truth, no Australian government is likely to implement - a U.S.-style fair use.
No matter how strong the arguments might seem that fair use would provide greater flexibility and fairness in an age of enabling digital technologies, it has always been a 'bridge too far' to upend the traditional Anglo-Australian approach to copyright exceptions and supplant it with the distinct and separate approach that Americans have followed for the last 170 years.
So U.S. fair use has no ongoing relevance to Australia? On the contrary, U.S. fair use will remain an important compass for Australian library professionals looking to navigate through the countless opportunities and uncertainties that enabling technologies will throw their way.
To retreat from the opportunities provided by those technologies - or, at least, wait until Australian copyright law gives the 'all clear' - is to invite increasing irrelevance.
The law will not be amended to create a clear, risk-free path to the digital future that the sector may wish, but that's not new. The countless gaps in copyright law have always been filled in - or, at least, carefully navigated around - by resort to a variety of moral and legal compasses.
Fair use is not a panacea, and U.S. courts have frequently struggled with its implementation, especially when applying it to commercial copyright content, but its principles - especially that of "transformative use" - are well-established, respected and largely non-controversial when applied to many of the activities and types of content that Australian libraries want to make digitally available to their users. In other words, whether fair use becomes part of Australian law or not, an understanding of its principles and their application is vital for Australian library professionals. It may not be the official roadmap, but sometimes you have to go with the only one you have.
Fair use is, at its best, a highly lucid and practical guide to anyone looking to apportion the rights and rewards of copyright owners and users. It has a place in Australia, even if it won’t be found in the Copyright Act.
The paper will apply fair use to a variety of 'edgy' practical scenarios, where Australian libraries try to embrace modern technologies, unshackle useful content, surprise and delight their users...and all the while stay out of trouble.