Implementing fair use in copyright law: lessons from Australia

One question that has long recurred in copyright reform debates in Commonwealth countries is whether to adopt an open-ended fair use exception similar to that found in the US. This question is often answered by reference to propositions regarding the respective merits of general and specific provisions, which in turn is understood as ultimately a choice between flexibility and certainty. However this article argues that such an approach rests on under-theorized claims about the merits of different styles of drafting. It uses standards and rules analysis to revisit some of the claims that characterise debates about copyright exceptions, noting how a range of factors bear upon the flexibility and predictability of the law. This article develops these themes and makes suggestions for future reform processes using Australian developments as a backdrop, including the Australian Law Reform Commission's review on Copyright and the Digital Economy, and a case study on Australia's bespoke hybrid exception, s. 200AB