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.

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.