The Copyright Tribunal as Exception-maker: Are Both Flexibility and Certainty Achievable?

Brennan, D

The Copyright Tribunal as Exception-maker: Are Both Flexibility and Certainty Achievable?

Brennan, D

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Publisher:: Thomson Reuters
Publication Type:: Journal Article
Citation:: Australian Intellectual Property Journal, 2018, 28 (3), pp. 83 - 96
Issue Date:: 2018

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Field	Value	Language
dc.contributor.author	Brennan, D https://orcid.org/0000-0002-0249-1961	en_US
dc.date.issued	2018	en_US
dc.identifier.citation	Australian Intellectual Property Journal, 2018, 28 (3), pp. 83 - 96	en_US
dc.identifier.issn	1038-1635	en_US
dc.identifier.uri	http://hdl.handle.net/10453/128139
dc.description.abstract	This article proposes an approach to address the current fair use impasse in Australia. This is by the conferral of delegated legislative power upon the Copyright Tribunal of Australia for it to periodically determine new public interest exceptions. The reform would require, for separation of powers reasons, that the Tribunal be reconstituted to perform such a legislative function. The proposal is one that navigates a course between the current law and the open slather adoption of US-style fair use recommended by the Australian Law Reform Commission by creating a public interest rulemaking power within an existing Australian copyright institution. It is also proposed to use as the vehicle for the delegation of power an overhauled s 200AB, so that the three-step test no longer nakedly applies in domestic law, but instead operates as criteria to inform the legislative choices of the Tribunal.	en_US
dc.publisher	Thomson Reuters	en_US
dc.relation.ispartof	Australian Intellectual Property Journal	en_US
dc.title	The Copyright Tribunal as Exception-maker: Are Both Flexibility and Certainty Achievable?	en_US
dc.type	Journal Article
utslib.citation.volume	3	en_US
utslib.citation.volume	28	en_US
utslib.for	1801 Law	en_US
pubs.embargo.period	Not known	en_US
pubs.organisational-group	/University of Technology Sydney
pubs.organisational-group	/University of Technology Sydney/Faculty of Law
utslib.copyright.status	open_access
pubs.consider-herdc	true	en_US
pubs.issue	3	en_US
pubs.publication-status	Published	en_US
pubs.volume	28	en_US

Abstract:

This article proposes an approach to address the current fair use impasse in Australia. This is by the conferral of delegated legislative power upon the Copyright Tribunal of Australia for it to periodically determine new public interest exceptions. The reform would require, for separation of powers reasons, that the Tribunal be reconstituted to perform such a legislative function. The proposal is one that navigates a course between the current law and the open slather adoption of US-style fair use recommended by the Australian Law Reform Commission by creating a public interest rulemaking power within an existing Australian copyright institution. It is also proposed to use as the vehicle for the delegation of power an overhauled s 200AB, so that the three-step test no longer nakedly applies in domestic law, but instead operates as criteria to inform the legislative choices of the Tribunal.

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http://hdl.handle.net/10453/128139