9.94 Australians routinely use copyright material, such as computer programs, music, e-books and films, for the purpose of back-up and data recovery. Many might be surprised to hear that making copies of this material for these purposes may often infringe copyright.
9.95 In the ALRC’s view, using copyright material for back-up and data recovery purposes should often be a fair use of copyright material. Rather than propose new or extended exceptions for this activity, as have recently been enacted in Canada, the ALRC proposes that the fair use exception should be used to determine whether such uses infringe copyright.
9.96 Some stakeholders submitted that the fair use exception could expressly refer to reproduction for the purpose of back-up and data recovery. However, the ALRC does not think that this is a sufficiently broad category of use to justify including it as an illustrative purpose of fair use.
9.97 If fair use is enacted, the existing specific exception in s 47C of the Copyright Act for making back-up copies of computer programs should be repealed.
9.98 Many stakeholders submitted that there should be an exception to allow consumers to back-up their digital possessions without infringing copyright. Many stressed the importance of protecting consumers’ rights and meeting reasonable consumer expectations.
9.99 The Internet Industry Association submitted that exceptions for back-up should not distinguish between different types of digital content:
Backing up should not require a further permission of the copyright owner and should not be restricted as to the technology used or the place where the stored copy is made or held.
9.100 Many submitted that a fair use exception, rather than new specific exceptions for back-up and data recovery, should be used in these circumstances. For example, Dr Rebecca Giblin submitted that
a narrow purpose-based exception would be poorly adapted to the changing technological environment and potentially hinder the development and uptake of new back-up and recovery technologies. A flexible exception in the style of fair use would be a far preferable method of achieving the same aims.
9.101 Other submissions expressed concern about exceptions for the purpose of back-up and data recovery. Modern business models often involve contracts with consumers to allow them to make copies of copyright works for the purposes of back-up and data recovery, and so, it was argued, an exception is either not necessary, or would harm the rights holders’ interests. The Australian Film and TV Bodies, for example, submitted that there is
substantial evidence of online business models and content delivery services that permit a consumer to re-download or re-stream content if another copy is legitimately required. iTunes is a popular example. The introduction of a right of back-up for any content downloaded from iTunes would undercut existing licensing models and therein licensees’ ability to offer specific licence conditions for authorised content (including at different price points).
9.102 APRA/AMCOS also expressed concern that a new exception might interfere with established markets. ARIA submitted that
this concern is already addressed through the commercial models already operating in the market, with download stores allowing consumers to make additional copies of recordings under the terms of the licensed service. Therefore an additional exception for this purpose is unnecessary and unjustified.
9.103 The computer games industry body submitted that business models are addressing users’ desire to back-up content. Users can often re-download a game ‘multiple times if for any reason they accidentally, or intentionally, remove the game from their device’.
9.104 Some stakeholders expressed concern that new exceptions for back-up and data recovery might allow users to copy copyright material which they are only entitled to access for a limited time or so long as they pay an ongoing subscription fee. A subscription to a magazine, for example, may come with access to digital copies of the magazine’s entire back catalogue. Subscribers should not then be free to copy and keep that entire back catalogue. To take another example, APRA/AMCOS submitted that if exceptions extend to the back-up of tethered downloads, it would have a ‘chilling effect on innovation’ and ‘may lead to the exit from the Australian market of Spotify, Rdio and others’.
9.105 Similarly, Foxtel submitted that it makes content available to its subscribers to stream or download for a limited time, and this period of time is usually determined by the content owner. If copyright exceptions allowed subscribers to copy this content, ‘this would conflict with Foxtel’s and/or the rights holder’s ability to exploit that content at a later time’.
9.106 In the ALRC’s view, copying such ‘tethered’ downloads is unlikely to be fair use. Further, such fine distinctions between fair and unfair copying for private purposes or the purpose of keeping back-up copies, highlights the benefit of having a flexible, principled exception like fair use.
9.107 Third parties increasingly offer data back-up and retrieval services, often allowing users to store their digital belongings on remote servers in the cloud. Some of these services will automatically scan a customer’s computer, and upload files to a remote server. Many submissions stated that third parties should be allowed freely to assist with back-up and data recovery. For example, the ADA and ALCC submitted
A number of cloud-based back up services, for example, now offer an automatic back up service … Any exception must account for consumers and organisations ‘making’ copies of information for back-up purposes, and service providers who facilitate back up automatically, on their behalf.
9.108 Telstra submitted that exceptions should allow cloud service operators to back-up and store legally-acquired material on behalf of their customers, but should not be able to ‘commercially exploit material under the protection of a private use exception’.
9.109 In the ALRC’s view, the use of copyright material by some back-up and data recovery services may well be fair use. Although commercial, some such services may well be considered transformative and non-consumptive, and may not harm the markets of rights holders. However, other services that do more than merely back-up files, and perhaps offer a service similar to services offered by rights holders, may not be fair.
Proposal 9–4 The fair use exception should be applied when determining whether a use of copyright material for the purpose of back-up and data recovery infringes copyright.
Proposal 9–5 The exception for backing-up computer programs in s 47J of the Copyright Act should be repealed.
 Of course, businesses and other organisations also need to make and store back-up copies of copyright material.
 Section 29.24 of the Copyright Modernization Act, C-11 2012 (Canada) applies broadly to ‘a work or other subject-matter’. The person who owns or has a licence to use the source copy may reproduce it ‘solely for backup purposes in case the source copy is lost, damaged or otherwise rendered unusable’. The copy is limited to personal use, the original must not be an infringing copy, the person must not circumvent a TPM to make the copy, and the person must not give away any of the reproductions.
 See eg, Telstra Corporation Limited, Submission 222; Law Institute of Victoria (LIV), Submission 198.
 See eg, R Giblin, Submission 251.
 Internet Industry Association, Submission 253.
 Whether making back-up copies is fair use does not appear to have been properly tested in US courts.
 R Giblin, Submission 251. See also EFA, Submission 258.
 Australian Film/TV Bodies, Submission 205.
 APRA/AMCOS, Submission 247.
 ARIA, Submission 241.
 iGEA, Submission 192.
 APRA/AMCOS, Submission 247.
 Foxtel, Submission 245.
 ADA and ALCC, Submission 213.
 Telstra Corporation Limited, Submission 222. See also Music Council of Australia, Submission 269.
 How fair use may apply to third party uses of copyright material is discussed more broadly in Ch 5.