Copyright and the Digital Economy: Is It Necessary to Adopt Fair Use?

Abstract

This paper reviews recent recommendations for and against the introduction of an open-ended fair use exception for the digital age in the EU, the UK, Ireland and Australia. Law Commissions in Ireland and Australia both recommended introducing an open-ended fair use exception, as well or instead of the list of limited fair dealing exceptions, while reviews of the law in the UK and EU have not recommended such sweeping changes. The paper argues that while the “fair use” exception has many advantages for the digital age, a major legislative overhaul of copyright law is unnecessary to adapt a copyright regime to the digital realm. Balancing technological innovation and content creation depends less on the distinctions between the fair use and fair dealing exemptions and more on ensuring that the law, through both legislation and judicial interpretation, in fact acts to promote the main purpose of copyright law, the benefit of the public. This can be achieved through a focus on fairness and the harmonization of exceptions to be found in the Berne three step test.