Fair use & the ALRC Inquiry

INFORMATION SHEET G091v05
March 2014
Fair use & the ALRC Inquiry
In February 2012 the Attorney-General requested the Australian Law Reform Commission (ALRC)
to conduct an inquiry into copyright in the digital economy (the Inquiry). In its Issues Paper
published on 20 August 2012, the ALRC sought submissions on a variety of issues, including
whether Australia’s Copyright Act should be amended to include a broader, “fair use” style
exception.
On 5 June 2013 the ALRC released a Discussion Paper (the June 2013 Discussion Paper),
including a proposal that the Copyright Act should provide an exception for fair use. The June 2013
Discussion Paper stated the ALRC’s position that, having considered arguments for and against
the introduction of a fair use exception in Australia, the pros outweigh the cons. Together with the
Issues Paper, the ALRC received 870 public and 139 confidential submissions to the Inquiry.
The ALRC delivered its Final Report to the Attorney-General on 29 November 2013, which was
released publicly on 14 February 2014.1 The central recommendation of the Final Report was the
introduction of a fair use exception, and in turn the repeal of many existing “fair dealing exceptions.
This information sheet gives a brief overview of the ALRC’s recommendation about fair use and
how it might operate in practice including in relation to the current “fair dealing” exceptions.
Because of its reference to the fair use exception in the US, and by way of comparison, this
information sheet will also briefly survey the provision for fair use in that jurisdiction.
The purpose of this information sheet is to give general introductory information about
copyright in Australia. If you need to know how the law applies in a particular situation,
please get advice from a lawyer.
Key points
•
The Attorney-General asked the ALRC to consider fair use as part of the Inquiry;
•
The ALRC recommended that the Copyright Act make provision for an exception for fair use;
•
Australian copyright law currently allows “fair dealing” for certain purposes, such as for
research or study, criticism or review, reporting news, and parody or satire and the ALRC
recommended that these prescriptive exceptions be repealed;
•
The ALRC recommended if fair use concept was not introduced, an alternative
recommendation is to broaden the existing fair dealing exceptions to cover more particular
purposes.
•
The US fair use provision is not limited to use for a particular purpose.
1 http://www.alrc.gov.au/sites/default/files/pdfs/publications/final_report_alrc_122_2nd_december_2013_.pdf
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Australian Copyright Council Information Sheet G091v05 Fair Use & the ALRC Inquiry 2 Background
For several reasons that we detail below, the ALRC considers that “Australia would benefit from
introducing a fair use regime.”
Australian copyright law allows for fair dealing for certain purposes. These include research or
study, criticism or review, reporting news and parody or satire.
The ALRC’s recommendation about the inclusion of an exception for fair use also involves the
recommendation that the current fair dealing exceptions, amongst other provisions in the Copyright
Act, be repealed. The ALRC has also put forward an alternative or fall-back recommendation in
which it says that if fair use is not introduced, the Copyright Act should be amended to include new
fair dealing exceptions for certain uses.
Types of uses that the ALRC recommends under a fair use exception are:
•
the current fair dealing uses (research or study, criticism or review, reporting news, and parody
or satire);
•
professional advice; quotation; non-commercial private use;
•
incidental or technical use;
•
library or archive use;
•
educational use; and
•
access for people with disability.
The ALRC recommends that if a fair use exception is not adopted, that the categories of uses
listed should be included in amended fair dealing provisions.
Current situation in Australia
As mentioned above, there is currently provision in Australian copyright law for fair dealing for
purposes such as research or study, criticism or review, reporting news and parody or satire. See
our information sheet, Fair Dealing: What can I use without permission, for more information.
International context
Countries such as the United Kingdom, Ireland and Canada have fair dealing exceptions that apply
in specific circumstances.
In the United Kingdom, it was requested of the Hargreaves Review on intellectual property reform
that it review the benefits of introducing a fair use exception. In the Hargreaves Review report
released in May 2011, it concluded that importing fair use “was unlikely to be legally feasible in
Europe and that the UK could achieve many of its benefits by taking up copyright exceptions
already permitted under EU law and arguing for an additional exception, designed to enable EU
copyright law to accommodate future technological change where it does not threaten copyright
owners.”2
In Ireland, the Copyright Review Committee undertook a review of copyright legislation. One of its
terms of reference is to examine whether a US style fair use doctrine would be appropriate in an
2 Digital Opportunity: A Review of Intellectual Property and Growth – An independent report by Professor Ian Hargreaves, May 2011. http://www.ipo.gov.uk/ipreview-­‐finalreport.pdf PO Box 1986, Strawberry Hills NSW 2012
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Australian Copyright Council Information Sheet G091v05 Fair Use & the ALRC Inquiry 3 Irish/EU context.3 In its report published in 2013, the Committee recommended a circumspect and
conservative “fair use”-style provision, which would be consistent with EU directives.4
During 2009, Canada conducted copyright consultations and in June 2012 its Copyright
Modernization Act (or Bill C-11)5 received royal assent. While the Bill introduced new fair dealing
provisions for the specific purposes of parody, satire an education, Canada did not adopt a broader
fair use exception.
Interestingly, the Canadian Supreme Court has recently handed down some decisions that apply a
broader interpretation of fair dealing than what has traditionally been considered to fall within the
scope of the exceptions. In particular, the Supreme Court of Canada has held that the provision by
online music distributors of short music snippets to the public is a fair dealing for research.6 In a
separate case, the Supreme Court held that photocopying parts of textbooks for classes was a fair
dealing for research.7 In Australia, what has been considered to fall within the scope of fair dealing
for research or study has generally been limited to activities carried out by the person undertaking
the research or study. This is distinct from the provision of copyright material by a third party to
persons undertaking research or study. See our information sheet, Research or Study, for more
information.
In contrast, the United States has a more general fair use exception.
A number of government inquiries have considered whether Australia should introduce a broadbased fair use exception. See, for example, the Copyright Law Reform Committee’s, Simplification
of the Copyright Act 1968: Part 1 Exceptions to the Exclusive Rights of Copyright Owners 1998,
and the Attorney-General’s Department Issues Paper, Fair Use and other Copyright Exceptions
2005.
Ahead of the planned rollout of the National Broadband Network and as part of a concern that
Australia encourage opportunities within the digital economy, on June 2012 the then AttorneyGeneral asked the ALRC to consider fair use as part of its inquiry into copyright exceptions in the
digital environment.
An Issues Paper was released in August 2012 with a call for submissions. There were two specific
questions posed relating to the possibility of including a new “fair use” style exception into
Australian law:
Question 52. Should the Copyright Act 1968 (Cth) be amended to include a broad, flexible
exception? If so, how should this exception be framed? For example, should such an
exception be based on ‘fairness’, ‘reasonableness’ or something else?
Question53. Should such a new exception replace all or some existing exceptions or
should it be in addition to existing exceptions?”
3 www.djei.ie/science/ipr/crc_statement.htm 4 Modernising Copyright: the Report of the Copyright Law Review Committee, Dublin 2013, pp 93-­‐94. http://www.enterprise.gov.ie/en/Publications/CRC-­‐Report.pdf 5 http://www.parl.gc.ca/HousePublications/Publication.aspx?Docid=5686009&file=4 6 Society of Composers, Authors and Music Publishers of Canada, et al. v. Bell Canada, et al. [2012] SCC 36. 7 Province of Alberta et al v. Access Copyright [2012] SCC 37 – The K-­‐12 “education” case. PO Box 1986, Strawberry Hills NSW 2012
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Australian Copyright Council Information Sheet G091v05 Fair Use & the ALRC Inquiry 4 Submissions closed on 16 November 2012. Several submissions were received about a fair use
exception. These are available on the ALRC’s website.
A Discussion Paper, seeking views on a recommendation for a fair exception was released on
5 June 2013. Submissions were received by the ALRC until 31 July 2013.
The ALRC delivered its report to the Attorney-General on 29 November 2013, which was made
available to the public on 14 February 2014 8.
How the US fair use provision operates
The US fair use exception is codified in Section 107 of the US Copyright Law.9
While the section suggests a number of purposes that may be considered to be within the scope of
fair use (such as scholarship, research or news reporting) these are not exhaustive. As such, the
US fair use exception has the potential to apply in more circumstances than the Australian fair
dealing exceptions. However, for the same reason, the fair use exception is less certain in terms of
when the exception may be relied upon. At every level in the US courts, decisions about fair use
have been reversed.
Like the current Australian exceptions, in order to rely on the US exception, the use must also be
fair and what is “fair” is not specifically defined.
Rather, whether or not a use is fair must be considered according to four factors, to be weighed
together, listed in the US Copyright Law:
•
the purpose and character of the use, including whether such use is of a commercial nature
or is for non-profit educational purposes;
•
the nature of the copyright work;
•
the amount and substantiality of the portion used in relation to the copyright work as a
whole; and
•
the effect of the use upon the potential market for or value of the copyrighted work.
A court may also consider additional relevant factors and no one factor is determinative (so, for
example, a use for non-profit educational purposes won’t automatically be fair).
In the 2012 case of Monge v Maya Magazines Inc LLC, the United States Court of Appeals held
that the publication by a magazine of paparazzi photos that were stolen and then reproduced in
their magazine was not a fair use. While the use was clearly for the purpose of news reporting, the
court noted (amongst other things) that the photos had not been transformed into a new work, that
the whole work in each case had been published, that the use was a commercial one, and also
that the photos were unpublished and were not intended to be published. Taking these factors into
account, the use was not a fair use. It was not sufficient to simply claim that fair use applied
because the purpose was to report the news.10
In contrast, in another 2012 case, the United States Court of Appeals held that a parody of a viral
video featured in a South Park episode was a fair use. The Court held the parodic use had
transformative value, and while South Park had used a substantial part of the video, the parody
was not a market substitute for the original, nor did it have a negative impact on the market for the
original version.11
8 http://www.alrc.gov.au/publications/copyright-­‐report-­‐122 9 Copyright Law of the United States of America Contained in Title 17 of the United States Code.
10 Monge v Maya Magazines Inc LLC, http://caselaw.findlaw.com/us-9th-circuit/1609030.html 11 Brownmark Films v Comedy Partners, http://www.ca7.uscourts.gov/tmp/L217T0TU.pdf PO Box 1986, Strawberry Hills NSW 2012
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Australian Copyright Council Information Sheet G091v05 Fair Use & the ALRC Inquiry 5 In 2013, the Second Circuit Court of Appeals held that 25 of appropriation artist Richard Prince’s
works were a fair use of photographer Patrick Cariou’s copyright protected photographs (and that
the remaining five artworks at issue was remanded to the district court to consider whether Prince
is entitled to a fair use defence with respect to them).12
In this case the court suggested that a use of a work can be fair if it doesn’t comment on or critique
the original. The court analysed the differences between Cariou’s and Prince’s works and noted
with respect to the 25 images deemed to constitute fair use, that a use may be transformative if
alterations to the original produce a new or different aesthetic in comparison. With regard to the
five remanded to the district court, the original and altered images were found to be similar and so,
the court suggested, “it is unclear whether these alterations amount to a sufficient transformation of
the original work of art such that the new work is transformative.”13
In November, the US Supreme Court declined to hear an appeal of the decision. The Second
Circuit decision stands, and the matter was referred back to the original district court for
determination of infringement in the five photographs that had been found to be infringed.
US v Australia
The factors to be considered when assessing fairness under the US fair use exception are very
similar to the factors to be considered when assessing if a use is fair under existing Australian fair
dealing provisions. In a sense, both regimes feature a level of flexibility as well as uncertainty.
In its Fair Use information sheet, the US Copyright Office states that “the distinction between what
is fair use and what is infringement in a particular case will not always be clear or easily defined.” It
also suggests that the “safest course” is to obtain permission from the copyright owner in order to
use material that is subject to copyright.14
Does fair use = personal use under US law?
In the US, not all personal uses are fair use, and some public uses are fair use.
Unlike the position in Australia, the purposes for which fair use may be relied upon are not closed
but may include for example, research or scholarship. In addition, US courts have held the
following to be purposes for which a fair use can be made: parody, recording a television program
for “time-shifting” purposes, and “intermediate” copying of a computer program to produce an
interoperable product. Given this, various personal uses may be fair uses, but it is not correct to
say that all personal uses will be a fair use.
Does US fair use allow access to a “locked digital file”?
Australian copyright law prohibits the manufacture and supply of devices for circumventing access
control technological protection measures (TPMs) - such as encryption and password protection
for digital files – as well as the circumvention of such measures – except for certain permitted
purposes. These permitted purposes include certain activities carried out by libraries, certain uses
of material by governments, and certain activities relating to computer programs.
Some people have argued that a fair use provision would limit the effect of a prohibition on
circumventing an access control. US fair use, however, only applies to accessible material; it does
12 Patrick Cariou v Richard Prince, http://www.ca2.uscourts.gov/decisions/isysquery/67369488-­‐4adb-­‐4ba1-­‐
99f5-­‐cf546633ad4c/3/doc/11-­‐1197_complete_opn.pdf 13 ibid (p. 21, lines 7-­‐8) 14 US Copyright Office, Information Sheet, Fair Use.
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Australian Copyright Council Information Sheet G091v05 Fair Use & the ALRC Inquiry 6 not give a right of access to inaccessible material – whether it is inaccessible because it is held by
an individual, or in a private library, or because it is a digital file with a TPM.
Under US law, if a use is a “personal use” is it free?
In 2006 following the Attorney-General’s Fair Use and Other Copyright Exceptions review Australia
introduced specific private copying exceptions for time-shifting, format-shifting and space-shifting.
In contrast, many countries – including the US – allow private copying, but have levies on
recording media and/or equipment to compensate copyright owners.
Copying music for personal use may in some cases be fair use under US law, but is more likely to
be covered by the home recording provisions. These provisions require the payment of a levy on
digital recording media and equipment, which is paid to copyright owners. In some cases, some
personal copying using media or equipment which is not subject to the levy is allowed: where it is
analogue rather than digital, and where it isn’t covered by the complex definitions in the legislation.
Do educational institutions have fewer copyright restrictions in the US?
There may be greater scope for free copying by educational institutions in the US under the fair
use defence, but the certainty surrounding circumstances in which material may be copied without
permission is more limited.
Guidelines have been released which set out minimum standards of what will be considered to
constitute educational fair use under Section 107. However, these are not codified in the legislation
and are best practice rather then enforceable.15
When comparing the provisions in Australia with those in the US, the uncertainty about what is
covered and associated compliance costs, and the cost of getting clearances when fair use does
not apply, must be taken into account.
US Bill of rights
The US has a Bill of Rights underpinning its law. For example, the First Amendment guarantees
freedom of speech; courts in the United States have regard to the First Amendment when
determining copyright cases, balancing potentially competing interests. There is no federal bill of
rights in Australia. This is relevant in considering whether Australia should move away from fair
dealing for specific purposes to a fair use model.
The ALRC’s fair use recommendation – the Discussion Paper
In its June 2013 Discussion Paper the ALRC suggested that an exception for fair use in Australia
would provide the technology neutral standard and the flexibility necessary to keep pace with
technological change, assisting the broader goals of innovation and meeting Australian consumer
expectations. Distinct from the analysis of US fair use above, the ALRC points to academic opinion
that argues that fair use in that jurisdiction is less uncertain and unpredictable than has been
claimed.
The June 2013 Discussion Paper sets out summaries of arguments both for and against the
introduction of a fair use exception submitted by stakeholders to the Inquiry.
At paragraph 4.34. the arguments in favour of the introduction of the exception are listed;
arguments in support of the introduction state that it:
15 US Copyright Office Circular 21, Reproduction of Copyrighted Works by Educators and Librarians. PO Box 1986, Strawberry Hills NSW 2012
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Australian Copyright Council Information Sheet G091v05 Fair Use & the ALRC Inquiry 7 •
provides flexibility to respond to changing conditions as it is principles-based and
technology neutral;
•
assists innovation;
•
restores balance to the copyright system; and
•
assists with meeting consumer expectations.16
At 4.57 it lists the four main arguments submitted against the introduction of the exception as
follows:
•
it is unnecessary and no case is made out for it;
•
it would create uncertainty and expense;
•
the concept originated in a different legal environment; and
•
it may not comply with the three-step test.17
The June 2013 Discussion Paper sought views on a model for a fair use exception that would
include a statement that fair use of copyright material is non-infringing, and non-exhaustive lists of
some of the kinds of purposes that may constitute fair use, as well as some of the factors that
might be considered in determining fairness.18
Indicators of fairness proposed by the ALRC in the June Discussion Paper drew on those currently
in the Copyright Act relating to fair dealing for research or study, which are similar to those listed in
the US fair use provision (s 107). The US fair use provision was considered by the ALRC to
provide a good guide for how the equivalent provision in Australia might be structured. The ALRC
stated that while it proposed wording that is close to these provisions it aimed to improve the clarity
of the language.
The ALRC proposed non-exhaustive ‘fairness factors’ were:
•
the purpose and character of the use;
•
the nature of the copyright material used;
•
in the case where only part of the copyright material is dealt with – the amount and
substantiality of the part dealt with, considered in relation to the whole of the copyright
material; and,
•
the effect of the use upon the potential market.19
The ALRC proposed that this fair use test would cover many of the existing specific exceptions in
the Copyright Act. In other words, the introduction of fair use would negate the need to have so
many individual exceptions in the Copyright Act. The ALRC’s proposals for the illustrative purposes
that may qualify as fair use drew on the current fair dealing exceptions in Australia (these are listed
above and in our ‘fair dealing’ information sheet).
In addition to recommending that these fair dealing exceptions be repealed20, the ALRC suggested
that other types of uses might also be considered under the proposed fair use exception rather
16 ALRC,
Copyright and the Digital Economy Discussion Paper 79 (DP 79), para 4.34, p. 65;
http://www.alrc.gov.au/sites/default/files/pdfs/publications/dp79_whole_pdf_.pdf
17 ALRC,
Copyright and the Digital Economy Discussion Paper 79 (DP 79), para 4.57, p. 71;
http://www.alrc.gov.au/sites/default/files/pdfs/publications/dp79_whole_pdf_.pdf 18 ALRC,
Copyright and the Digital Economy Discussion Paper 79 (DP 79); See Proposals 4-1&2, p. 90. 19 ALRC,
Copyright and the Digital Economy Discussion Paper 79 (DP 79); See Proposal 4-3, p. 92. PO Box 1986, Strawberry Hills NSW 2012
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Australian Copyright Council Information Sheet G091v05 Fair Use & the ALRC Inquiry 8 than under their own specific exceptions. These uses included (in order to determine whether
infringement has occurred):
•
non-consumptive use;
•
private and domestic use, including by third parties;
•
transformative use and quotation; data and text mining; educational use; and
•
use for public administration21.
The ALRC’s fair use recommendation – the Final Report
As mentioned above, the ALRC was persuaded by arguments in favour of fair use and
recommended a fair use exception in its Final Report.22
In favour of fair use, the ALRC argued:
• Fair use is flexible and technology-neutral.
• Fair use promotes public interest and transformative uses.
• Fair use assists innovation.
• Fair use better aligns with reasonable consumer expectations.
• Fair use helps protect rights holders’ markets.
• Fair use is sufficiently certain and predictable.
• Fair use is compatible with moral rights and international law.
The recommended model for fair use in the Final Report differed slightly from the model proposed
in the June 2013 Discussion Paper. While the statement that a fair use would be non-infringing
remained, the fairness factors were simplified slightly, and the list of illustrative purposes was
amended significantly: the purposes that extended beyond existing fair dealing exceptions went
under serious revision from those proposed in the June 2013 Discussion Paper.
The final non-exhaustive fairness factors are: the purpose and character of the use; the nature of
the copyright material used; the amount and substantiality of the part used; and the effect of the
use upon the potential market for, or value of, the copyright material.23 Of these, the third factor
was simplified from the June 2013 Discussion Paper proposal.
The final non-exhaustive list of illustrative purposes is:
•
research or study;
•
criticism or review;
•
parody or satire;
•
reporting news;
•
professional advice;
20 Ss
40(1), 103C(1); ss 41, 103A; ss 41A, 103AA; ss 42, 103B; s 43(2); ss 43A, 43B, 111A, 116AB and 200AAA; ss
43C, 47J, 109A and 110AA; s 111; s 200AB(2), and ss 28, 44, 135ZG, 135ZMB, 200, 200AAA and 200AB(3).
Note that at 4.172 the June 2013 Discussion Paper states that “On further review, there may be other exceptions
that should also be repealed, if fair use is enacted.” At the time of writing, the ALRC had not examined these
additional exceptions.
21 ALRC,
Copyright and the Digital Economy Discussion Paper 79 (DP 79); See Proposal 4-4 and Question 4-1, p. 94. 22 ALRC,
Copyright and the Digital Economy (ALRC Report 122); See Recommendation 5-1, 5-2, 5-3 and 5-4, p 13-14.
23 ALRC,
Copyright and the Digital Economy (ALRC Report 122); See Recommendation 5-2, p 13, 144.
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Australian Copyright Council Information Sheet G091v05 Fair Use & the ALRC Inquiry •
quotation;
•
non-commercial private use;
•
incidental or technical use;
•
library or archive use;
•
education; and
•
access for people with disability.24
9 Of these illustrative purposes, only the existing fair dealing purposes (research or study; criticism
or review; parody or satire; reporting news), quotation and education survive from the June 2013
Discussion Paper. ‘Public administration’ has been omitted entirely. ‘Non-consumptive use’ has
been rebranded ‘incidental or technical use’ and ‘private and domestic’ retitled ‘non-commercial
private use’. The Final Report contains three new illustrative purposes: ‘professional advice’,
‘library or archive use’ and ‘access for people with disability’.
Under this model, the ALRC maintained its proposal to repeal existing fair dealing exceptions.
As mentioned, in the event that this preferred proposal is not adopted, the ALRC recommends
amending the existing fair dealing exceptions to take account of these illustrative purposes,
including the new uses. It reverts to the proposed fairness factors in order to determine whether a
dealing for such purposes is fair.25
The Government is expected to respond to the ALRC’s recommendations. However, there is no
formal requirement on the Government to do so. In a speech delivered in February 2014, the
Attorney-General, Senator the Hon George Brandis QC said in regard to the ALRC’s
recommendation for fair use: “I remain to be persuaded that this is the best direction for Australian
law, but nevertheless I will bring an open and inquiring mind to the debate.”26
The Attorney-General also said the Government would seek the assistance of all stakeholders in
shaping its reforms.
Further information
For further information about copyright, and about our other publications and training program, see
our website – www.copyright.org.au
If you meet our eligibility guidelines, a Copyright Council lawyer may be able to give you free
preliminary legal advice about an issue that is not addressed in an information sheet. This service
is primarily for professional creators and arts organisations but is also available to staff of
educational institutions and libraries. For information about the service, see www.copyright.org.au
For further information about US fair use, see the website of the US Copyright Office:
www.copyright.gov
Reproducing this Information Sheet
Our information sheets are regularly updated - please check our website to ensure you are
accessing the most current version. Should you wish to use this information sheet for any purpose
other than your reference, please contact us for assistance.
24 ALRC,
Copyright and the Digital Economy (ALRC Report 122); See Recommendation 5-3, p 13, 150-151. 25 ALRC,
Copyright and the Digital Economy (ALRC Report 122); See Recommendation 6-1, p 14, 168-169.
26 http://www.attorneygeneral.gov.au/Speeches/Pages/2014/14February2014-
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Australian Copyright Council Information Sheet G091v05 Fair Use & the ALRC Inquiry 10 Australian Copyright Council
The Australian Copyright Council is an independent, non-profit organisation. Founded in 1968, we
represent the peak bodies for professional artists and content creators working in Australia’s
creative industries and Australia’s major copyright collecting societies.
We are advocates for the contribution of creators to Australia’s culture and economy; the
importance of copyright for the common good. We work to promote understanding of copyright law
and its application, lobby for appropriate law reform and foster collaboration between content
creators and consumers.
We provide easily accessible and affordable practical, user-friendly information, legal advice,
education and forums on Australian copyright law for content creators and consumers.
The Australian Copyright Council has been assisted by the
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arts funding and advisory body.
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