In June 2012, the Australian Law Reform Commission received terms of reference for a review of free exceptions and statutory licences in the Copyright Act 1968 (Cth).[1] The Commission’s Issues Paper, released in August 2012, contained fifty-five questions on which responses were sought.[2] The bulk of these questions focused on empirical and normative matters regarding discrete classes of activity that are or might conceivably be the focus of an exception or statutory licence, such as cloud computing, private copying, activities by cultural institutions, activities with orphaned works, and educational uses.

However the Commission also asked whether Australia ought to enact a broad, flexible exception, and if so, whether this should replace or supplement existing purpose-specific exceptions.[3] This article is relevant primarily, although by no means exclusively, to these latter two questions. Its aim is to critique existing law reform debates in relation to exceptions, many of which present the choice between closed-ended and open-ended provisions as turning on a preference for certainty or flexibility. It uses standards and rules analysis to challenge this dichotomy, and thus help reframe debates in a way that is more nuanced and contextualised.

In presenting this analysis, this article engages not only with the broad question of whether a fair use-style provision would be a desirable addition to copyright law, a position that this author supports for Australia,[4] and which has been recommended by the ALRC in its Discussion Paper dated May 2013.[5] Rather, it is also interested in questions of implementation: of the precise form any new exception should take, and what additional measures might be necessary to mitigate the risk that a broad open-ended exception will never become a meaningful part of the copyright system. Much of its analysis is based on the utilisation of the US fair use doctrine as a template for reform,[6] although it must be acknowledged that other models are also possible.[7] Indeed, Australia itself has experience with so-called flexible drafting, most notably through bespoke exception, s 200AB.

Given it is peculiar to Australian law, a brief summary of s 200AB is useful at this point. Section 200AB is a relatively recent addition, having been introduced by the Copyright Amendment Act 2006 (Cth). It has been described as a “hybrid” exception due of its use of both closed-ended and open-ended drafting elements.[8] The main closed-ended aspect is that only nominated user groups may take the benefit of the provision: bodies administering a library or archives;[9] educational institutions; and users with a disability and those assisting such people. In contrast, the legislature did not attempt to particularise the uses to which s 200AB might apply, and indeed the application of the exception to any given use is to be judged by, inter alia, factors said to have the “same meaning” as Article 13 of TRIPS: the circumstances of the use must amount to a special case; the use must not conflict with a normal exploitation of the work or subject-matter; and the use must not unreasonably prejudice the legitimate interests of the owner of the copyright.[10]

As discussed in Part II, the introduction of s 200AB can be seen against the backdrop of long-standing interest in whether general exceptions can help fix problems thought to be associated with the prevailing drafting model for exceptions across the British Commonwealth: closed-ended and often highly detailed provisions.[11] This debate was revitalised in Australia during the implementation of the US-Australia Free Trade Agreement,[12] and indeed s 200AB was identified as bringing to Australia some of the benefits of fair use.[13] However this article uses the post-FTA developments to illustrate broader themes about the propositions and analytical techniques that tend to characterise debates about the drafting of exceptions. It argues that these debates frequently rest on oversimplified claims about the respective merits of different styles of drafting. In Part III it uses standards and rules analysis to reveal complexities that are often glossed over, noting that the operation of any statutory provision depends not only on its language, but its complexity, the broader statutory context, and the interpretative practices of judges and those regulated by law. It continues these themes in Part IV by using Australian experiences with s 200AB as a case study about the implementation of open-ended exceptions into copyright law.

The particular empirical work described in Part IV is interview-based fieldwork conducted with leading Australian cultural institutions in 2012-2013.[14] This fieldwork suggests that s 200AB has failed to become a meaningful part of institutional copyright practices, and that this state of affairs shows little prospects for change. One question that arises from this research is whether a similarly restrictive interpretation is likely for all flexible exceptions, such that an Australian fair use doctrine would suffer a similar fate. However it is argued that the issues when s 200AB is viewed through the lens of standards and rules analysis, it can be seen that its muted reception is an entirely predictable consequence of the way that provision is drafted. The failures of s 200AB should not, therefore, be seen as a rejection of flexible exceptions per se. Indeed other behaviours and practices suggest there is much potential for fair use to become a workable exception for Australian cultural institutions. These lessons about the failures of s 200AB are relevant not only to Australia, but to other jurisdictions dealing with similar questions about the reform of copyright exceptions.