Yet Australia’s inflexible and unbalanced copyright laws are blocking Australian universities from making full use of cutting edge digital technologies such as data and text mining in research. They limit the ways in which Australian universities can deliver innovative content via Massive Open Online Courses (MOOCs). They prevent Australian academics from fully engaging with colleagues and the broader community. They stand in the way of Australian universities collaborating with business and industry.

A fair use exception of the kind proposed by the Productivity Commission (the Commission) in its Report would address these concerns. It would put Australia on a level playing field with leading digital economies such as the United States, Israel, South Korea and Singapore, each of which have fair use exceptions.

Universities Australia submits that it is now well and truly past the time for policy makers to be asking “do we need an open ended fair use exception?” After 20 years of reviews that have considered this question, the evidence is in: Australia’s existing inflexible, purpose-based copyright exceptions are no longer fit for purpose. They are holding Australia back, not just in our universities and schools, but also in our digital industries. Innovative and useful technologies, and new ways of using content in socially beneficial ways, automatically infringe copyright in Australia unless their use falls within one of the existing narrow, purpose-based exceptions.

It is also well past the time to be asking whether a flexible exception such as fair use would unreasonably prejudice Australian authors and publishers. Again, the evidence is in. The fair use scare campaign by some rights holder groups flies in the face of the compelling evidence that rights holders have nothing to fear from fair use. After all, the educational publishing industry is booming in the USA, the “home” of fair use.