Use of Generalist Fair Use Defence in Australian Intellectual Property Law

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The objective of the Copyright Act 1968 (Cth) is to protect those who create works, such as artistic works or literary works, as well as those other subject matter, such as films or sounds recordings, from those who would serve to exploit or profit from their labor, skill and creativity. But, what about those who use these protected works and other subject matter for interests different to the above? Such as for educational purposes or for broadcasting? Under the act, there are listed many defences to protect an individual or a corporation from infringement of copyright, or in other words, directly or indirectly, infringing those exclusive rights that the copyright owner possess, also listed under the act . These defences operate in areas such as fair dealing, educational uses, artistic works, performances, communication and broadcasting, computer programs, importing, copying by libraries and archives and judicial proceedings and statutes . Although the current act does provide protection, in the form of legislated, or statutory defences, it could be argued that a fair use defence, as is currently being used in the United States of America via their equivalent of the Copyright act , may be a more simple approach to this issue. The current legislation in some areas is specific, and in others, hard to understand. A generalist fair use defence may simplify the current legislation and also create less confusion for the individual and the Court system. But, there is always the risk by introducing such a measure, it may create loopholes, and at this current point in time, the Australian Court system is reluctant to import such a principle, although it has been acknowledged in obiter. It has been acknowledged, via legal forums, that the system of copyright law in Australia is complicated, and has been argued, through submission to be made simpler. As introduced above, the Copyright Act 1968 (Cth) was introduced in response to the growing need to protect individual’s creative works or other subject matter from commercial or other exploitation. The above named act provides that copyright is a statutory right, and abolishes any right to copyright at common law . The Berne Convention for Protection of Literary and Artistic Works, an international convention on copyright protection, which was first held in 1886, and has b... ... middle of paper ... ...llip, Intellectual Property: Copyright and Materials, Lawbook Company Casebook, Sydney 2002. - “Paper for Meeting with the Copyright Law Review Committee on 4 October 2001, Discussion Paper, www.law.gov.au/www/clrHome.nsf/AllDocs/ - Ploman, Edward W, and Clark Hamilton, L, Copyright: Intellectual Property in the Information Age, Routledge and Kegan Paul, London 1980. - Ricketson, Sam and Richardson, Megan, Intellectual Property: Cases, Materials and Commentary, 2nd Edition, Butterworths, Sydney 1998. - Reynolds, R and Stoianoff, Natalie, Intellectual Property: Text and Essential Cases, The Federation Press, Sydney 2003. - “Simplication of the Fair Dealing Provisions in the Copyright Act 1968”, Comments on the CLRC’s Discussion Paper, CAUL: Council of Australian University Librarians, August 1997, www.caul.edu.au/gov-inqu/clrc-972.html - “Simplification of the Copyright Act 1968”, Part I: Exceptions to the Exclusive Rights of Copyright Owners, Copyright Law Review Committee, www.law.gov.au/clr/Simplification/

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