The Copyright Tribunal As Exception-Maker: Are Both Flexibility and Certainty Achievable?

Abstract

This article proposes an approach to address the current fair use impasse in Australia. This is by the conferral of delegated legislative power upon the Copyright Tribunal of Australia for it to periodically determine new public interest exceptions. The reform would require, for separation of powers reasons, that the Tribunal be reconstituted to perform such a legislative function. The proposal is one that navigates a course between the current law and the open slather adoption of US-style fair use recommended by the Australian Law Reform Commission by creating a public interest rule-making power within an existing Australian copyright institution. It is also proposed to use as the vehicle for the delegation of power an overhauled section 200AB, so that the three-step test no longer nakedly applies in domestic law, but instead operates as criteria to inform the legislative choices of the Tribunal.