Higher education and fair use: A wider copyright defence in the face of the Australia-United States Free Trade Agreement changes

The higher education sector has helped to shape the copyright law agenda in Australia for several decades. It participated in the discussions on the framing of the statutory licence for copying by educational institutions. The statutory licence was a response to the Moorhouse case and the recommendations of the Franki Committee. The higher education sector was again involved when the education statutory licence required updating to accommodate the developing online communications environment under the Digital Agenda amendments to the Copyright Act. The provisions of the Australia-US Free Trade Agreement caught some by surprise, in particular the extension of the copyright term. In the brief period between the public release of the final terms of the agreement and the passage of the implementing legislation, copyright user groups, including the higher education community, succeeded in placing a new item on the copyright agenda. This was the possibility of transforming the current closed set of fair dealing defences into a single broad exception based on the American fair use model. They argued that this wider defence would act as an appropriate balance for the extended term of copyright and the strengthening of the provisions relating to technological protection measures that lock digital content. The article examines the background to this new copyright agenda and looks at some of the key issues for the higher education sector as it engages in public debates about copyright defences, particularly as they operate in the online communications environment. Will it have repercussions for the current statutory licence framework settled over more than 20 years of disputes? Will a wider fair use defence affect the operation of the library exceptions also relied upon by the higher education community? Will it be an opportunity for a fundamental re-examination of the way the higher education community makes use of copyright material for teaching and in the research and library contexts?