{{tag>"copyright" }}
======fair dealing for research and study - lose the hard 10% limit======
Edit: it seems that the hard 10% limit was a 'mistake' and will not be included. Below are my thoughts why we should never remove the remaining flexibility in the fair dealing exceptions.

The new copyright amendments before the Australian Parliament seek to limit the rights that Australians have long held to reproduce hardcopy and electronic text for the purpose of research or study. The current law allows individuals to make copies of material for the purposes of research or study, as long as it is fair. The new law will remove this fairness test, and replaces it with a hard 10 percent limit. Under the new law, any reproduction of printed or electronic literary or dramatic which exceeds 10 percent or one chapter will be an infringement of copyright, and punishable by damages, fines, or even imprisonment.

Under the current law, the limits of exactly when a person can reproduce copyright material for research or study are not strictly defined. It promotes flexibility by allowing fairness to be determined on a case-by-case basis. Copying is normally prohibited, but is allowed it when it is done fairly. This allows a flexible balance to be struck between the rights of the copyright owner and the needs of researchers.

Researchers and students do know the minimum they can copy under the existing law. If you copy 10 percent or one chapter or less, for the purpose of research or study, your use will be deemed to be fair. This 10 percent is not a hard limit; a person can copy more, as long as they can show that it is for research or study, and is still fair in the circumstances. The existing system is both secure, in that it provides minimum limits, and flexible, in that it allows fair dealings above that limit in certain circumstances.

The new law has no flexibility. It will prohibit copying of more than 10 percent in situations which would otherwise be fair. For example, you can’t copy more than 10 percent of a rare, out of print book, even if the only copy is in the National Library. You can’t print out a whole press release from a website, or photocopy a musical score from a compilation. You can’t even quote a whole post from an online forum.

These amendments seem to be at odds with the Government’s policy to support Australian research. In the Prime Minister’s message introducing the Backing Australia’s Ability funding package, John Howard said that the “Australian Government has shown an unparalleled willingness to invest in people and enhance their capacity to generate new ideas and turn those ideas into new products and services, creating jobs, wealth and other benefits for Australia.”

Despite the Australian Government’s stated support for researchers and students, the new copyright laws create a fundamental barrier to their research. These laws put Australians far behind the standards of access enjoyed by people in the United States and other countries. The amendments form part of sweeping changes to Australia’s copyright law, some of which were required by the Australia – United States Free Trade Agreement. We have agreed to make our copyright law stricter, by increasing the duration of copyright, and introducing some tough new criminal penalties, like the United States. What we didn’t do is introduce a flexible open-ended exception to copyright infringement that the US has. In the US, any use of copyright material is allowed if the user can show that it’s fair. It’s a balanced system which allows each use to be evaluated on its merits.

In Australia, we only allow fair dealings for a number of uses, like criticism or review, news reporting, or critically, research or study. And now, instead of introducing an open-ended exception, the Australian Government has decided to limit the concept of fair dealing for research and study. One page or one word over the 10 percent limit, and the researcher or student will be breaking the law. A student who quotes a little too much from a work in a research paper can be sued, or even worse, fined and imprisoned for up to 5 years.

The Government claims that this new change adds certainty for researchers. Unfortunately, any added certainty comes at the expense of the actual ability to research. It is unacceptable in an information age, where educated workers and researchers are driving the economy, to limit the ability of students and researchers to make fair copies of important copyright material.

It is hypocritical for the Australian Government to be placing limits on the competitiveness of Australian innovators. The concept of fairness already protects copyright owners from being ripped off. The critical question is whether Australian researchers are going to have the continued ability to lead the world in innovation, or whether Australian students are going to be placed at a learning disadvantage compared to other students around the world.

When we signed up to the Free Trade Agreement, we agreed to make our copyright laws similar to those of the US. We didn’t agree to place limits on the abilities of our students and researchers to compete in the international marketplace. The question of fairness is something that is familiar in Australia. We should all be able to agree that researchers and students should be able to fairly use copyright material. We still agree that film critics and news reporters are allowed to act fairly with the material they need to use. Why not researchers and students?

In a liberal democracy which prides itself on the creativity and innovation of its people, these strict limits are unacceptable. Flexibility has always been the key to the interpretation of which uses are fair and which are not, and we can’t afford to remove that flexibility from our researchers.
~~DISCUSSION:closed~~