Copyright Bill edges closer to reality

However, critical areas of the Bill remain unchanged. These involve a test of quantity to determine what is fair copying in a digital environment.

Copyright interest groups agree with libraries on the issue of fair access. For example, CAL has always supported the right of those with low incomes or those who live in remote regions to have reasonable access to the public library system. We also strongly support the rights of students and others to benefit from fair dealing provisions which allow for free copying for legitimate, defined reasons.

For example, it is fair for a student to copy an article without paying a copyright fee when researching an assignment, since it can be reasonably argued that the student would not buy the book or subscribe to the journal from which the article came. In other words, the student’s copying does not affect the market.

But how can it be fair if a profit-making company doing research to improve its retail product can copy a chapter from a digital or printed work, and not pay the rights owner by purchasing the work or paying a royalty fee? Copyright must be a business cost like any other.

Because the test of fairness relates only to quantity (deeming, for example, copying one article to be fair), the current copyright law does not distinguish between commercial and non-commercial copying. The problem is exacerbated in the digital world.

CAL holds the firm view that using a quantitative measure to decide what is fair in a digital environment is the wrong test. The correct approach is to look at the purpose of the copying and assess its effect on the commercial market for the work.

Applying this solution would continue to provide protection for traditional library users, keep Australia in step with the rest of the world, and protect the rights of creators to exploit their work if they wish.

The true measure of fair copying in the digital environment is qualitative, not quantitative, because digital publication allows people to consume and copy intellectual property in radically different ways to those allowed by printed works.

In short, both the market for digital works and related consumer behaviour are profoundly different to their print counterparts.

Determining whether an individual, or group of individuals, should have access to copyright works for free should depend on the proposed use of the work and whether that use affects the market for the work. This is the international Berne Convention test.

The Bill already contains a very good test of fairness in section 40(2). It uses the criteria noted above, and is in line with the "three-step test" provided in the Berne Convention.

The problem arises in the next section, 40(3), which deems the copying of 10%, a chapter or an article of a work to be fair in any research and study circumstances. Rightsholders have decried the introduction of this "deeming" provision into the digital environment. It is no longer a test of fairness.

If that section were removed, fairness would be determined by the type of use and its effect on the market, thereby protecting traditional uses and ensuring commercial copying includes the payment of a fee to the creator or rights owner.

The House of Representatives Standing Committee on Legal and Constitutional Affairs is due to report to the House in the week beginning 6 December.