Google: With No Fair Use, It’s More Difficult to Innovate

Unlike the United States where 'fair use' exemptions are entrenched in law, Australia has only a limited "fair dealing" arrangement. As a result, Google's head of copyright William Patry says that Australia wouldn't be a safe place for his company to store certain data, a clear hindrance to innovation and productivity.

With Fair Use Week now in full swing, people around the world are celebrating the freedom to use copyrighted content in certain contexts without fear of prosecution, thereby enabling creativity and inspiring innovation.

The legal freedom offered by fair use is a cornerstone of criticism, research, teaching and news reporting, one that enables the activities of thousands of good causes and enriches the minds of millions. However, not all countries fully embrace the concept.

Perhaps surprisingly, Australia is currently behind the times on this front, a point not lost on Google’s Senior Copyright Counsel, William Patry.

Speaking with The Australian (paywall), Patry describes local copyright law as both arcane and not fit for purpose, while acting as a hindrance to innovation and productivity.

“We think Australians are just as innovative as Americans, but the laws are different. And those laws dictate that commercially we act in a different way,” Patry told the publication.

“Our search function, which is the basis of the entire company, is authorized in the US by fair use. You don’t have anything like that here.”

Australia currently employs a more restrictive “fair dealing” approach, but it’s certainly possible that fair use could be introduced in the near future.

Last year, Australia’s Productivity Commission released a draft report covering various aspects of the country’s intellectual property system. One of its key recommendations was to adopt fair use legislation.

“The Australian Government should amend the Copyright Act 1968 to replace the current fair dealing exceptions with a broad exception for fair use,” the Commission wrote in its report.

“The new exception should contain a clause outlining that the objective of the exception is to ensure Australia’s copyright system targets only those circumstances where infringement would undermine the ordinary exploitation of a work at the time of the infringement.”

Unfortunately, the concept of fair use is not universally welcomed. Local anti-piracy and royalty organizations are opposing its introduction, claiming that it will undermine their ability to make money.

Interestingly, broadcaster Foxtel says that the deployment of fair use would introduce “significant and unnecessary uncertainty into Australian law.” This is the exact opposite of Google’s position.

The search giant says that Australia’s current exceptions fail to offer legal certainty and that a US-style fair use system would be much more predictable.

“If you are a company like Google who wants to store information in the cloud, or internet searches or text and data mining, we can do that safely in the US. We can’t do it here,” Patry concludes.

In its final inquiry paper, Australia’s Productivity Commission renewed its calls for the introduction of fair use, noting that in the US, where fair use is long established, “creative industries thrive.”

Whether fair use will ever hit Aussie shores remains to be seen, but yet again there is a division between how technology companies and entertainment groups would like copyright law to develop. It’s a battle that’s set to continue well into the future.

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