The Fair Use Doctrine in the United States — A Response to the Kernochan Report

Abstract

Fair Use Doctrine in the United is a submission to Australian Law Reform Commission (ALRC) in connection with its study of Copyright and the Digital Economy. The ALRC released a Discussion Paper on Copyright and the Digital Economy in June 2013. The Discussion Paper recommends, among other things, replacing the specific exceptions in the Australian Copyright Act with an open-ended ‘fair use’ exception. Our submission provides a brief overview of the United States experience of the fair use doctrine since its partial codification in the Copyright Act of 1976 and responds to some specific issues raised in an earlier submission to the ALRC by the Kernochan Center for Law, Media and the Arts. Our submission addresses nine questions about the fair use doctrine in the United States:1. Does the American experience of fair use show that it is unpredictable?2. Do recent cases demonstrate that fair use is uncertain in application?3. What is the role of fair use guidelines in the United States?4. What is the role of various “best practices” guidelines in the United States?5. What does fair use mean to the education sector in the United States?6. Would Australian fair use rulings diverge from United States’ precedent over time?7. Would adopting a fair use doctrine lead to more litigation? Would fair use be useful without substantial litigation?8. How does educational fair use relate to the anti-circumvention provisions under United States law?9. Is the fair use doctrine compatible with the international obligations of the United States?