In this part, we consider the development and treatment of fair use as a doctrine in early English case law. We undertake this task in order to show that fair use is a key element of the notion of “copyrights” that was imported into the Australian Constitution at federation and, as such, may legitimately form a part of judicial reasoning in Australia.¹⁴

The fair use doctrine codified in section 107 of the United States Copyright Act (as amended) provides:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1)

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

 

(2)

the nature of the copyrighted work;

 

(3)

the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

 

(4)

the effect of the use upon the potential market for or value of the copyrighted work.

 

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.¹⁵

The U.S. case of Folsom v Marsh ¹⁶ is often cited as the origin of the fair use doctrine, and it is generally accepted that the factors codified in §107 are based upon Justice Story’s articulation of the doctrine in that case.¹⁷ In reality, however, the principles underpinning fair use were developed significantly earlier than 1841 in a series of cases in the United Kingdom dealing with fair abridgements.¹⁸ As William Patry observes in his treatise on fair use:

[T]he basic foundations and rationale [of fair use] were established remarkably early. In the century from 1740 to 1839, English judges developed a relatively cohesive set of principles governing the use of a first author’s work by a subsequent author without the former’s consent.¹⁹

Beginning with Gyles v Wilcox ²⁰ in 1740, the English courts developed the principle that an abridgment of a first author’s work would not be an infringement if it were “real and fair” and if it involved “invention, learning and judgment”.²¹ In other words, the courts considered whether the second author had engaged in a productive use.²² In Gyles v Wilcox, the plaintiff sought an injunction to restrain the printing of an allegedly infringing legal treatise. Lord Chancellor Hardwicke referred the case to a Master, who found that the defendant had copied 35 pages of the plaintiff’s 275-page work. Lord Chancellor Hardwicke found for the defendant, holding,

Where books are colourably shortened only, they are undoubtedly within the meaning of the act of Parliament, and are a mere evasion of the statute, and cannot be called an abridgment. But this must not be carried so far as to restrain persons from making a real and fair abridgement, for abridgements may with great propriety be called a new book, because not only the paper and print, but the invention, learning, and judgment of the author is shewn in them, and in many cases are extremely useful, though in some instances prejudicial, by mistaking and curtailing the sense of an author.²³

Subsequently, Tonson v. Walker ²⁴ also highlighted the relevance of whether a defendant had engaged in a productive use. In that case, the plaintiff had produced a compilation of Milton’s poems which contained 1,500 notes from various authors. The defendant copied the plaintiff’s work and attached a further 28 notes. Lord Chancellor Hardwicke granted an injunction against the defendant, holding that this was not a fair abridgment but a mere evasion.²⁵

Later cases emphasised other attributes of a fair abridgment—Dodsley v Kinnersley ²⁶ considered whether the defendant’s copy would prejudice the market for the original, and Macklin v Richardson ²⁷ found it important that the defendant’s work should not supersede the original.²⁸ These are the very same attributes that we see informing the concept of fair use today.²⁹ In Dodsley v Kinnersley, plaintiffs were assignees of Samuel Johnson. They published a two-volume work of his fiction, from which the defendant printed one-tenth in a magazine. The court held for the defendant.³⁰ The court was less influenced by the small quantity taken than the fact that the plaintiffs had previously published an abstract of their work in a newspaper. The court thought that this demonstrated that the market for the original would not be prejudiced by the availability of abstracts. In Macklin v Richardson, the plaintiff was the creator of an unpublished two-act play. The defendant hired transcribers to attend a performance of the play and he then published the first act in his monthly magazine with a notice that the second act would be published in the next issue. The plaintiff sued and the defendant claimed fair abridgment or fair review. The court held that this was an infringement. Lord Commissioner Smythe stated, “This is not an abridgment, but the work itself.”³¹ William Patry has argued, “Without articulating it, Macklin provides the foundation for the principle that a review may not supplant the market for the work itself, a concept repeated many times in subsequent decisions.”³²

In 1803 in Cary v Kearsley,³³ a case that became known as an important decision in this area,³⁴ the court used language that could be interpreted to apply more broadly than just to fair abridgement cases. In fact, Patry has asserted, “we find here the origins of fair use, as opposed to fair abridgment.”³⁵ Cary v Kearsley concerned the defendant’s copying of the plaintiff’s work, The Book of Roads, which was an itinerary that the plaintiff had composed by taking surveys of various roads. To evidence infringement, the plaintiff pointed to various errors in his work that had appeared verbatim in the defendant’s work. Lord Ellenborough did not consider that proof of errors transmitted into the defendant’s work amounted to proof of infringement, stating that the defendant was authorised to make extracts of another’s work in his own and that “mistaking the names and descriptions, and taking such detached parts, was only using an erroneous dictionary.”³⁶ On the contrary, His Honour considered that where the defendant’s work contained additional observations or corrections of mistakes, this was likely to be evidence that the work was not an infringing copy. He said, “[W]hile I shall think myself bound to secure every man in the enjoyment of his copyright, one must not put manacles upon science.”³⁷ Lord Ellenborough observed:

That part of the work of one author is found in another, is not of itself piracy, or sufficient to support an action; a man may fairly adopt part of the work of another: he may so make use of another’s labours for the promotion of science, and the benefit of the public: but having done so, the question will be, Was the matter so taken used fairly with that view, and without what I may term the animus furandi?³⁸

Animus furandi, in law, generally means “the intention to steal”.³⁹ Our understanding of the role of animus furandi in copyright law is that the presence or absence of animus furandi—or bad faith—may be a helpful indicator of infringement, though it will not be determinative in itself. Copyright infringement is actionable per se; a defendant does not need to intend to infringe to be liable. However, a bad faith intention may be reflected in the way that the defendant has copied—a copy made in bad faith is less likely to be transformative or to contain an original contribution from the defendant. Rather, a defendant with animus furandi is more likely to copy the plaintiff’s work verbatim or very closely. Animus furandi may point to infringement, therefore, not because the intent of the defendant is relevant in itself but because the intent can influence the type of copying engaged in by the defendant.⁴⁰ Thus, William Patry contends that in the sense it is used in Cary v Kearsley, animus furandi “involves both a moral inquiry and an examination of the defendant’s creative effort.”⁴¹

Lord Ellenborough concluded Cary v Kearsley with a description of his directions to the jury:

I shall address these observations to the jury leaving them to say, whether what [was] so taken or supposed to be transmitted from the plaintiff’s book, was fairly done with a view of compiling a useful book for the benefit of the public, upon which there has been a totally new arrangement of such matter, – or taken colourably, merely with a view to steal the copyright of the plaintiff?⁴²

Kathy Bowrey has cited an earlier case, Sayres v Moore,⁴³ as the “earliest expression of fair use”.⁴⁴ The case involved the copying of four sea charts into one large map. The court found that there had been “very material errors” in the plaintiffs’ charts, which the defendant had corrected in his map. Chief Justice Mansfield directed to the jury:

If an erroneous chart be made, God forbid it should not be corrected even in a small degree, if it thereby become more serviceable and useful for the purposes to which it is applied. But here you are told, that there are various and very material alterations. This chart of the plaintiffs’ is upon a wrong principle, inapplicable to navigation. The defendant therefore has been correcting errors, and not servilely copying. If you think so, you will find for the defendant; if you think it is a mere servile imitation, and pirated from another, you will find for the plaintiffs.⁴⁵

The jury found for the defendant. As with Cary v Kearsley, the focus of the court here was on whether the defendant’s use delivered a public benefit, in terms of correcting errors or promoting science. Both cases involved the copying of maps and neither act of copying could be accurately described as an abridgment, but this was not the primary concern of the courts. Therefore, it can be said that both cases contemplated whether the defendant engaged in a fair use as opposed to a fair abridgment.⁴⁶

Wilkins v Aiken ⁴⁷ followed a similar approach to Cary v Kearsley. In that case, the plaintiff alleged that the defendant had copied several drawings and pages from his book on the antiquities of Greece; the defendant claimed that this use was a fair abridgment or a fair quotation. Lord Eldon characterised the question before the court as “whether this is a legitimate use of the plaintiff’s publication in the fair exercise of a mental operation, deserving the character of an original work.”⁴⁸ Copinger has described this case as one in which “[the] actual use is avowed and the only question is, whether it is a fair use.”⁴⁹

Sayres v Moore, Cary v Kearsley and Wilkins v Aiken all focused on the use made by defendant of the plaintiff’s work, giving weight to the transformativeness of the use and the original contributions of the defendant.⁵⁰ Additionally, Sayres v Moore and Cary v Kearsley considered whether the use made by the defendant provided public benefit and promoted “science”. This approach mirrors, to some extent, current U.S. jurisprudence, where the fair use doctrine is considered an important safeguard against copyright monopolies in promoting the public’s interest in free expression, including expression made through iterative creative processes and transformative works.⁵¹ The important point here, as Oren Bracha notes, is that by undertaking these assessments of whether the defendant made a new intellectual contribution and whether the defendant’s use was fair, “[t]raditional English doctrine…allowed ample breathing space to abridgements, translations, imitations and other derivative uses.”⁵²

In Lewis v Fullarton,⁵³ a case involving an alleged infringement of The Topographical Dictionary of England, the defendant argued that his use his was lawful because he had “made only a fair use of a former publication on the subject of his own subsequent work.”⁵⁴ Although the court held for the plaintiff, finding that “in a large proportion of the Defendant’s work, no other labour has been applied than in copying the Plaintiff’s work”,⁵⁵ it is significant that the court posed no objection to defendant’s framing of his defense as a “fair use”.⁵⁶

Lewis v Fullarton was decided in 1839. This, then, was the state of the law in the United Kingdom immediately before Folsom v Marsh was decided in the United States in 1841.

Folsom v Marsh ⁵⁷ concerned biographies of George Washington, both of which contained copies of Washington’s original letters. Jared Sparks wrote and compiled a biography that amounted to 12 volumes (around 7,000 pages). The first volume was an original biography of Washington written by Sparks, and the remaining volumes constituted Washington’s private and public letters, which Sparks had acquired from Washington’s estate along with permission to publish them. The volumes were printed by the publishing house, Folsom, Wells and Thurston.⁵⁸ Many of the letters included in the biography had not been previously published. Subsequently, Charles Upham published a two-volume biography of Washington, which ran to 866 pages. The biography was intended for use in schools and was published by Marsh, Capen, Lyon and Webb as part of their Massachusetts School Library series.⁵⁹ Upham’s intention was to tell Washington’s story through Washington’s own words in his writings and letters. The Master in the case found that 356 pages of Upham’s work corresponded identically to passages in Sparks’ work and that of those pages, 319 pages were letters first published by Sparks.⁶⁰ Upham argued that he had the right to “quote, select, extract, or abridge from another, in the composition of a work essentially new.”⁶¹

Justice Story cited to the U.K. cases of Dodsley v. Kinnersly and Tonson v. Walker for the proposition that a fair and bona fide abridgement was not an infringement.⁶² Referring to Gyles v Wilcox, he stated that the requirement for such an abridgment was: “There must be real, substantial condensation of the materials, and intellectual labor and judgment bestowed thereon; and not merely the facile use of the scissors; or extracts of the essential parts, constituting the chief value of the original work.”⁶³ He held that Upham’s use could not properly be regarded as an abridgment because “[i]t is a selection of the entire contents of particular letters, from the whole collection or mass of letters of the work of the plaintiffs.”⁶⁴ In finding for the plaintiffs, Justice Story seemed to conclude that defendant’s use was closer to a “facile use of the scissors” than a result of intellectual labor and judgment.

Then, Justice Story uttered his famous proclamation:

In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.⁶⁵

Folsom v Marsh had a strong effect on fair use jurisprudence in the United Kingdom as well as in the United States.⁶⁶ In the English case of Scott v Stanford,⁶⁷ decided in 1867, Vice-Chancellor Wood quoted from Justice Story’s opinion with approval. Scott v Stanford concerned primarily factual information. The plaintiff was the registrar of the coal market for London, and published statistics showing the quantity of the imports of various collieries. The defendant “took the names of collieries, rearranged them in alphabetical order, placed the figures from the collieries opposite their name and summarized the whole of the information contained therein.”⁶⁸ The defendant argued that there was an absence of animus furandi because he had honestly acknowledged the source from which the information was taken and he had acted “in good faith, for purely scientific purposes, and without any intention of making a profit, or superseding the sale of the original work.”⁶⁹Vice-Chancellor Wood couched the inquiry as “what is a fair commentary or fair use for scientific purposes of the labours of another man[?]”.⁷⁰ He continued, “The general principles guiding the Court in cases of this description could hardly be found better stated than in the following words, used by Mr. Justice Story in Folsom v. Marsh…”⁷¹ He then quoted in full the statement set out above (see footnote 65). The court ultimately held for the plaintiff because, despite the defendant’s good intentions, “the great bulk of the Plaintiff’s publication – a large and vital portion of his work and labour – has been appropriated and published in a form which will materially injure his copyright”.⁷² The court was primarily influenced by the fact that “[a] great deal of time and labour must have been spent in [the plaintiff’s] compilation”,⁷³ whereas the defendant had operated “by the mere use of paste and scissors, and without the exercise of any of that labour which the Plaintiff has had to encounter in extracting his materials from the mass of daily returns.”⁷⁴ However, Vice-Chancellor Wood was also swayed by the difference in price between the two publications. The defendant’s work was being sold more cheaply than the plaintiff’s work, which prejudiced the plaintiff’s market.⁷⁵

Scott v Stanford was not Vice-Chancellor Wood’s first fair use decision. Previously, but still after Folsom v Marsh, he had decided Jarrold v Houlston,⁷⁶ in which he stated,

The really difficult question in cases of this description, where it must be admitted that the matter is not original, is how far the author of the work in question can be said to have made an unfair or undue use of previous works protected by copyright? As regards all common sources, he is entitled to make what use of them as he pleases; but, as Lord Langdale said in Lewis v. Fullarton (2 Beav. 6), he is not entitled to make any use of a work protected by copyright which is not what can be called a fair use.⁷⁷

In 1870, 3 years after Scott v Stanford, Walter Copinger’s landmark treatise on The Law of Copyright was published.⁷⁸ There, Copinger recites the same statement of Justice Story in Folsom v Marsh that Vice-Chancellor Wood quoted in Scott v Stanford.⁷⁹ Further, he describes the test for copyright infringement in the following terms:

So entirely must each case be governed and regulated by the particular circumstances attending it, that any general rules on the subject must be received with extreme caution. Regard must be had to the value of the work, and the value of the extent of the infringements; for while, on the one hand, the policy of the law allows a man to profit by all antecedent literature, yet, on the other, the use made of such antecedent literature may not be so extensive as to injure the sale of the original work…⁸⁰

Finally, for the purposes of our discussion, Walter v Steinkopff was decided in 1892.⁸¹ There, the defendant, publisher of the St James’ Gazette, published extracts from articles in the plaintiff’s newspaper, the Times. In arguing their case for infringement, counsel for the plaintiffs stated (citing to earlier cases including Scott v Stanford and Wilkins v Aiken):

The considerations on which the Court acts in granting or refusing an injunction are the nature and objects of the selections made by the copyist, the quantity and value of the material used, and the degree in which the use may affect the sale or supersede the objects of the original work, and whether the Defendants have applied in these selections what the Court can regard as real intellectual legitimate labour, or merely copied.⁸²

Thus, the plaintiff’s lawyers used the exact language set down by Justice Story in Folsom v Marsh in framing the question of infringement and whether the remedy of an injunction should follow. Justice North, delivering the opinion of the Court, took up this approach, quoting Lord Eldon in Wilkins v Aiken: “The question upon the whole is whether this is a legitimate use of the plaintiff’s publication in the fair exercise of a mental operation deserving the character of an original work.”⁸³ Justice North concluded, “In the present case what the Defendants have had recourse to is not a mental operation involving thought and labour in producing some original result, but a mechanical operation with scissors and paste, without the slightest pretention to an original result of any kind; it is the mere production of a ‘copy’ without trouble or cost.”⁸⁴

U.K. case law developed a complex but consistent doctrine in the eighteenth and nineteenth centuries that copyright infringement did not occur where the defendant’s use was a fair use. The principle began with fair abridgments, but over time it broadened to include other derivative uses as well. Fairness was demonstrated by a use that did not prejudice or supersede the market for the original work. Courts generally found fair use where the defendant made a productive use that did more than colourably shorten or alter the original work for the purpose of evading liability (i.e. was more than a mere “scissors and paste” approach) and where the defendant had made an original contribution to the resulting work. The factors set down by Justice Story in Folsom v Marsh in 1841, which were essentially codified in the U.S. Copyright Act in 1976, were adopted without controversy by English courts determining infringement disputes in the late nineteenth century. The principle of fair use remained a central part of English copyright jurisprudence up to the turn of the century, which is where our historical inquiry ends.⁸⁵ In 1900, the UK Parliament enacted the Commonwealth of Australia Constitution Act,⁸⁶ which contained, in section 9, the Constitution of the Commonwealth of Australia and which granted to the Australian Parliament the power to make laws with respect to copyrights.⁸⁷ At the time of including the copyright power in the Constitution, the general legal understanding of “copyrights” would have included the notion of fair use as it had been established in U.K. precedent.

In Sect. 8.2, we sought to show that fair use was an important concept in nineteenth century UK copyright jurisprudence. In this part, we focus on the Australian Constitution and discuss how the copyright, patent and trade mark power may incorporate this concept that a fair use does not infringe copyright.

Section 51 of the Commonwealth of Australia Constitution Act 1900 provides:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: … (xviii) copyrights, patents of inventions and designs, and trade marks.

Unlike the Intellectual Property Clause of the United States Constitution,⁸⁸ the power to make laws with respect to copyright in the Australian Constitution is not limited by express requirements that, for example, exclusive rights must be secured only for “limited Times” and to promote “Progress”. Nevertheless, we would argue that the word “copyrights” in the Australian Constitution is infused with particular meaning that incorporates certain fundamental principles relating to the scope, operation and limits of copyright law. These principles maintain the important balance between private property rights to incentivize production and the public’s right to access knowledge and culture, by preserving the distinction between infringing copying and non-infringing copying. The notion that non-infringing copying includes a productive or fair use of a copyrighted work is one which, we submit, is included within the meaning of “copyrights” in the Australian Constitution.

Although the Australian Constitution has a special status in Australian law, it was nonetheless enacted as part of an Imperial statute in the Commonwealth of Australia Constitution Act 1900 (UK) s. 9. The Constitution, therefore, is to be interpreted according to the ordinary principles of statutory interpretation.⁸⁹ The words of the Constitution should be given the ordinary and natural meaning that they had at the time of federation, though it must be kept in mind that the Constitution is intended to endure.⁹⁰ Historical materials may be considered when construing the provisions of the Constitution to determine the background circumstances surrounding those provisions.⁹¹

In The Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479, [2000] HCA 14, the High Court considered the scope of the power in s 51 (xviii) in determining whether it supported the enactment of the Plant Variety Rights Act 1987 (Cth) and the Plant Breeders’ Rights Act 1994 (Cth) as laws with respect to “patents”. The majority judges adopted the approach of Higgins J in his dissenting judgment in Attorney General for NSW v Brewery Employees Union of NSW,⁹² a case concerning trade marks. Justice Higgins held that while it was necessary to ascertain the meaning of “trade marks” in 1900 when the Constitution was enacted, that meaning “gives us the central type; it does not give us the circumference of the power”.⁹³ The majority judges in Grain Pool determined that “it would be wrong to regard the legislative grant of monopoly rights in new plant varieties as being, in 1900, outside the ‘central type’ of the subject matter of patents of inventions”, noting that legislation to grant patent rights for plant-related inventions had been proposed in the United States as early as 1892 and that views in support of this legislation “would have been at the time apposite to the position of Australia wheat breeders such as William Farrer, whose Federation cultivar of wheat was named in 1901”.⁹⁴

The majority judges dismissed the plaintiff’s assertion that the constitutional concept of a patentable invention is one that displays elements of both novelty and inventiveness, and that legislation which grants a patent right without requiring both novelty and inventiveness is unconstitutional.⁹⁵ The judges held that this requirement could not be said to have formed part of the constitutional understanding of “patent” because “the distinction later drawn between prior publication or lack of novelty and obviousness or lack of invention or of subject-matter was not fully developed in the case law as it stood in 1900.”⁹⁶

In a concurring opinion, Justice Kirby stated that the “ultimate criterion [is] not pre-Federation legal understandings, but a search for the ‘essential characteristics’ of the words used in the Constitution.”⁹⁷ He referred to the judgment of Justice Isaacs in the Union Label Case:

Isaacs J insisted that the search was ultimately not for the procedural or substantial incidents of “trade marks” as they had developed in England up to 1900. Instead, it was for something more fundamental and enduring (and therefore released from such a reference point). He described it as a search for the “really essential characteristics”, the “universal element”, the “fundamental conception” or the “essential particulars”.⁹⁸

The fundamental conception of copyright, as envisaged originally by the Statute of Anne⁹⁹ and later by the Australian Constitution, is that copyright grants to an author of an original work exclusive rights in the exploitation of that work in exchange for the author making that work available to the public. This understanding of copyright as a balance between private rights and public rights endures to this day—the High Court in the 2009 IceTV case noted as such:

The “social contract” envisaged by the Statute of Anne, and still underlying the present Act, was that an author could obtain a monopoly, limited in time, in return for making a work available to the reading public.¹⁰⁰

Thus, copyright seeks to balance the monopoly interests of an author with the public’s interest in gaining access to new works of creative authorship.¹⁰¹ The public interest is promoted through essential characteristics of the copyright doctrine, including that copyright protection is granted for a limited time,¹⁰² that copyright protects only expression and not ideas,¹⁰³ that copying an insubstantial part will not be a copyright infringement,¹⁰⁴ and, we argue, that a productive or fair use of a copyrighted work is not an infringing copy capable of being regulated by copyright law. A fair use of a work, provided it contains an original contribution of the defendant, is almost certain to enhance the public interest aspect of copyright’s social bargain in encouraging the production and dissemination of new works for the learning and advancement of the public. These essential characteristics together promote a robust public domain and an appropriately delineated copyright doctrine. The U.S. Supreme Court has expressly characterised the idea/expression dichotomy and fair use as important free speech safeguards¹⁰⁵ which ensure that “copyright itself [is] the engine of free expression” despite its grant of monopoly rights.¹⁰⁶

Further, as was demonstrated in Sect. 8.2 of this paper, the concept of fair use was one that had been fully considered and sufficiently developed by the time that the Australian Constitution was enacted in 1900. In the United States, the fair use factors laid out by Justice Story in Folsom v Marsh ¹⁰⁷ in 1841 remained sufficiently static for the US Congress to codify them in the 1976 Copyright Act.¹⁰⁸ Folsom v Marsh was considered in Scott v Stanford,¹⁰⁹ one of the prominent English cases that formed part of the legal precedent in Australia at the turn of the nineteenth century.¹¹⁰ By the time the Australian Constitution was enacted, the UK courts had established a doctrine that copyright infringement did not occur where the defendant made a productive use that included an original contribution and that did more than colourably alter the copyrighted work.¹¹¹ Thus, fair use can be easily distinguished from the concept that a patentable invention must be both novel and inventive because, unlike that concept, it was fully developed as a doctrine in 1900.

To use the words adopted by Justice Kirby in the Grain Pool case,¹¹² we submit that fair use is a “fundamental” and “enduring” aspect of copyright law which goes to the “central type” of the copyright power in the Australian Constitution.

It is clear from the examination of the older English cases in Sect. 8.2 that the understanding of UK copyright law in 1900 and underpinning our constitutional notion of “copyrights” was not that of an unlimited power to prevent all copying. Rather, the essence of copyright law was balance. Copyright distinguished between infringing and non-infringing copying and granted to the copyright owner only the power to control the former.¹¹³ We argue that copyright law today, which finds expression in the Copyright Act 1968, must draw the same distinction and regulate only infringing copying.

While we do not suggest that the Copyright Act 1968 is unconstitutional as enacted, we do argue that it must be read to operate within constitutional bounds. This position has judicial support. In FCT v Munro; British Imperial Oil Co Ltd v FCT, Justice Isaacs said, “There is always an initial presumption that Parliament did no intend to pass beyond constitutional bounds. If the language of a statute is not so intractable as to be incapable of being consistent with this presumption, the presumption should prevail.”¹¹⁴ In Attorney-General (Vic) v Commonwealth (‘the Pharmaceutical Benefits Case’), Justice Dixon stated:

In discharging our duty of passing upon the validity of an enactment, we should make every reasonable intendment in its favour. We should give to the powers conferred upon the Parliament as ample an application as the expressed intention and the recognised implications of the Constitution will allow. We should interpret the enactment, so far as its language permits, so as to bring it within the application of those powers and we should not, unless the intention is clear, read it as exceeding them.¹¹⁵

These statements accord with section 15A of the Acts Interpretation Act 1901 (Cth), which provides, “Every Act shall be read and construed subject to the Constitution”.¹¹⁶

We submit that the Copyright Act 1968 can also be read to give effect to fair use notwithstanding that the fair use doctrine is not expressly incorporated into Australian copyright legislation.¹¹⁷ This lack of express incorporation is not necessarily surprising. As Jessica Litman has argued, copyright law traditionally granted very narrow rights and “aimed its proscriptions at commercial and institutional entities”, leaving ordinary uses such as reading, listening and viewing unconstrained.¹¹⁸ The Statute of Anne was directed towards those who caused to be “Printed, Reprinted or Imported” books without the consent of the proprietor¹¹⁹—acts which were necessarily outside the reach and abilities of ordinary citizens because of the constraints of technology and the printing press at the time. Because copyright law was concerned with regulating printers and publishers, it did not concern itself with the activities of ordinary citizens, nor did it need to. These ordinary activities—which we might deem “fair uses”—“functioned as historic copyright liberties, implicit in the copyright statutory scheme and essential to its purpose.”¹²⁰

In the United States, copyright law evolved so that the scope of protection expanded and the doctrine of fair use was included as a statutory defence in §107 of the Copyright Act 1976. Thus, while the Folsom v Marsh case was originally understood in US jurisprudence as “describing the boundaries of a prima facie claim of infringement” it gradually came to be treated as a precedent for the fair use defence now enshrined in copyright legislation.¹²¹ In fact, some US scholars have argued that it was Folsom v Marsh itself that casually flipped the copyright paradigm and began the US on the march towards a system of copyright law that treats virtually every copy as an infringement subject only to statutory defences. For example, John Tehranian has argued that whereas the early Anglo-American fair abridgment and fair use cases “viewed acts of borrowing, if they were sufficiently transformative, as simply non-infringing uses”,¹²² Folsom v Marsh subtly altered the infringement inquiry by focusing on what was taken from the copyrighted work rather than what was produced by the defendant. Tehranian claims that it is because of this conceptual shift in applying the infringement test that US cases subsequent to Folsom began, over time, to treat fair use as a defence.¹²³

In Australia, the law has not developed to the point that fair use is treated as a defence to infringement, whether based in common law or statute. Nonetheless, fair use forms part of the complex tapestry of the copyright law. We submit that fair use can be incorporated in the Copyright Act 1968 through sections 36(1) and 101(1), which we argue distinguish between infringing and non-infringing copies with the phrase “any act comprised in the copyright”. We make this argument more fully below in Sect. 8.4.1.

We further seek to demonstrate how the principle of fair use can be used to interpret and apply the tests for infringing copying under the Australian Copyright Act. To prove that infringing copying has occurred, a plaintiff must generally show that there has been (1) copying (2) of a substantial part of the copyrighted work. Copying has two elements—there must be a causal connection and there must be an objective similarity between the two works.¹²⁴ The tests of causal connection and objective similarity are not statutory tests set out in the Act, but they are used by courts to assist in interpreting the Act and determining infringement. The doctrine of fair use can inform this interpretative process, by helping courts to distinguish between infringing and non-infringing copying both within the objective similarity test and the substantial part requirement of the Act. In the follow sections, we address the role of fair use in relation to each of the following in turn: (1) the term “an act comprised in copyright” in sections 36(1) and 101(1) of the Act; (2) the objective similarity test; and (3) the substantial part requirement in s. 14 of the Act.