Australian advisory body’s report tackles possibility of text and data mining exception in copyright law
17 October 2025
Australia’s Productivity Commission (PC) discussed the possibility of including a text and data mining (TDM) exception in its copyright law in its interim report, “Harnessing data and digital technology,” issued on August 5, 2025.
PC is an independent research and advisory body on economic, social and environmental concerns. Its report was aimed at identifying priority reforms under Australia’s productivity growth agenda.
According to the report, AI has immense potential economic benefits. However, weak regulation could stifle the adoption and development of AI. Further, it tackled the issue of potential copyright infringement when training AI models, citing it as a significant risk.
Australia’s copyright law currently has ‘fair dealing’ exemptions, albeit limited compared to other jurisdictions’ ‘fair use’ defence.
Katrina Crooks, a principal @ Spruson & Ferguson Lawyers, Sydney
“The possibility of Australia taking up a fair use doctrine has been discussed for some time in various contexts, but has not been adopted. A TDM exception would provide a more limited new fair dealing exception covering text and data mining,” said Katrina Crooks, a principal at Spruson & Ferguson Lawyers in Sydney.
According to the Productivity Commission, the use of AI models will continue in Australia, whether the TDM exemption is introduced or not.
It also said it is unclear whether such an exception would change the trend of large AI models being trained overseas. As for smaller, low-compute AI models such as those developed by Australian research institutions, it stated that the TDM exemption could make a difference as to whether these smaller models could still be built and trained in Australia.
“It also notes that a TDM exemption would not be a blank cheque as the use would still need to be ‘fair,’” Crooks added.
“Obviously, there are strongly held and opposing views as to the desirability of a TDM exemption and there is a real need to appropriately balance the rights of all the competing stakeholders. Proponents focus on the claimed economic potential of AI while others argue that such economic benefits will fall disproportionately into the hands of multinational ‘megatech’ companies,” said Crooks. “It is likely that to a large extent, the outcomes of any TDM exemption would depend significantly on the detail of how such an exemption were expressed, any legislative guidance as to what is considered ‘fair’ in this context, and how the courts ultimately apply the exemption.”
- Espie Angelica A. de Leon
