Australia's new 'flexible' copyright exception: open-ended in name only

Emily Hudson, University of Melbourne
Exceptions under s 200AB of the Copyright Amendment Act 2006
The new Flexible Exceptions for Cultural Institutions are intended to be open-ended and more flexible than previous exceptions. They enable us to make use of copyright material where that use doesn't infringe the copyright holder's interests.
“Fair Use” - under US law. Libraries and Archives exceptions exist but don't cover museums and galleries. (Our law has “Fair Dealing”.) Emily said flexibility and uncertainty move along together.
s 200AB(2)
Must be by/on behalf of a library or archive.
For the purpose of maintaining or operating the library or archive (onsite or online!); but
Can't be for commercial advantage (cost recovery is OK) – any kind of profit is NOT OK; and
s 200AB(1)
Work is not infringed by a use where the use amounts to a special case; doesn't conflict with a normal exploitation of the work/subject matter; and doesn't unreasonably prejudice the legitimate interests of the owner. (With some terms having the same meaning as TRIPS Art. 13 – international law.)
Whole of sector behaviour could have an effect on how the law is applied.
There are no fixed answers, so therefore, for us a risk management strategy is wise.
Emily says there is some exciting potential for the sector to act collectively and in unison.
[Her papers are available online at IPRIA.]
Responses to questions:
Institutions are not used to uncertainty and flexibility, so are inherently conservative, whereas the US environment has seen more activity.
External legal advice tends to be more risk averse because they don't really understand our circumstances or the law as it applies to us. What is the worst that will happen? Taking online works down usually works. If someone does go off and use litigation, the remedy will likely be rather limited against a cultural digitisation program. S 200AB gives a potentially powerful defence.
People seem to be looking to us to test the law on behalf of others.
ALCC is currently drafting the guidelines to use of 200AB under a use it or lose it principle. Laura Symes supposed to be talking to us now – Sophie??? We should let them know what we are about to do.
(I have to say that Emily delivered an amazing paper, because I know she'll probably be reading this blog soon. Hopefully she'll correct the errors I no doubt made above!]