EXECUTIVE SUMMARY

This Submission is based upon work in progress, which has been presented at this forum and published in the form of opinion-editorials:

1. Matthew Rimmer, 'Aaron's Army Fights the Trans-Pacific Partnership', Open Access Research Issues in the Humanities and Social Sciences, the Australian National University, 3 May 2013.

2. Matthew Rimmer, 'Aaron's Army Fights the Trans-Pacific Partnership', The Conversation, 8 March 2013, https://theconversation.edu.au/aarons-army-fights-the-trans-pacific-partnership-12273 and Delimiter http://delimiter.com.au/2013/03/08/aarons-army-fights-the-trans-pacific-partnership/ RECOMMENDATIONS

In its discussion paper, the Australian Law Reform Commission proposed a broad, flexible exception of fair use. The Commission emphasized that the new fair use exception should contain: (a) an express statement that a fair use of copyright material does not infringe copyright; (b) a non-exhaustive list of the factors to be considered in determining whether the use is a fair use (‘the fairness factors’); and (c) a non-exhaustive list of illustrative uses or purposes that may qualify as fair uses (‘the illustrative purposes’). The non-exhaustive list of fairness factors should be: ‘(a) the purpose and character of the use; (b) the nature of the copyright material used; (c) in a case where part only of the copyright material is used—the amount and substantiality of the part used, considered in relation to the whole of the copyright material; and (d) the effect of the use upon the potential market for, or value of, the copyright material. The non-exhaustive list of illustrative purposes should include the following: (a) research or study; (b) criticism or review; (c) parody or satire; (d) reporting news; (e) non-consumptive; (f) private and domestic; (g) quotation; (h) education; and (i) public administration.

Recommendation 1 The Australian Law Reform Commission’s proposal for a broad, flexible exception of fair use is to be welcomed and applauded.

Recommendation 2 The defence of fair use should promote the encouragement of learning, and access to knowledge in its list of fairness factors and its illustrative purposes.

Recommendation 3 In line with Canadian law, there is a need for a broad and liberal interpretation of ‘research’ and ‘study’ in the proposed defence of fair use to ensure that users’ rights are not unduly constrained.

Recommendation 4 The defence of fair use should include education, science, and research as illustrative purposes. Open licensing practices (such as the use of Creative Commons licences) and Open access policies of educational and scientific institutions should be taken into account in determinations of fairness.

Recommendation 5 The defence of fair use should embrace not only government use of copyright works, but also public use of copyright works held by the government. Public administration should be broadly construed to include open access to government works. This recognition would promote the rule of law, access to justice, citizen participation, open government, and the freedom of political communication recognised under the Australian Constitution.

Recommendation 6 Like the United States Obama Administration, the Australian Government should expand public access to the results of publicly funded research, science, and educational materials.

Recommendation 7 In light of its membership of the Open Government Partnership, the Australian Government should expand its Open Government policies and practices.

Recommendation 8 The defence of fair use – and future copyright exceptions – should not be constrained by the Trans-Pacific Partnership or other trade agreements. Moreover, the Australian Government should resist the further expansion of criminal offences and civil penalties under copyright law. There is also a need to ensure that the Trans-Pacific Partnership does not adversely affect open access policies or practices.