Tuesday, August 26, 2014
Dan Hunter, Queensland University of Technology, Faculty of Law, and New York Law School, has published American Lessons: Implementing Fair Use in Australia at 24 Australian Intellectual Property Journal 192 (2014). Here is the abstract.
This article discusses the recent Australian Law Reform Commission report proposing a fair use defense to copyright infringement in Australia. It examines the experience of fair use cases in the United States and draws three lessons from the jurisprudential history. First, it suggests that decisions in fair use can only really be understood within a theoretical framework, and that unless we import that framework into Australia any fair use defense will not work as expected. Secondly, the article argues that the area where fair use jurisprudence appears to be most helpful, in dealing with “transformative” works, is actually much more limited than outsiders to the US would expect. And finally, it suggests that any implementation of a factor related to market substitution should take account of the gaming of the system that has gone on in the US.
Download the article from SSRN at the link.