Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

As I foreshadowed, we do not agree with amendment (21). We think the original provision in the act should stand. It really is one of those areas where I think caution is warranted. Amendment (21) has also significantly changed from the earlier amendment, and you have then formatted it. The concern is whether or not it really achieves the purpose that you set out for it, or at least that you hope it will achieve. The amendment reads:

Despite subsection (2), a reproduction, for the purpose of research or study, of not more than a reasonable portion of a work or adaptation that is described in an item of the table and is not contained in an article in a periodical publication is taken to be a fair dealing with the work or adaptation for the purpose of research or study.

And then the table sets out two items under ‘work or adaptation’ and the amount that is a reasonable portion, which is, under item 1:

(a)

10% of the number of pages in the edition; or

(b)

if the work or adaptation is divided into chapters—a single chapter

Item 2 differentiates between that type of work and ‘a published literary work in electronic form’ and considers a reasonable portion as being:

(a)

10% of the number of words in the work or adaptation; or

(b)

if the work or adaptation is divided into chapters—a single chapter

One of the concerns raised is that, because of the way the online environment works, people are retailing, or at least putting online, chapters for sale, and the argument is that this would reduce a business case for the future. I am not going to run with that particular argument; I will simply say that the difficulty in moving this way is that you will put in place a regime that I do not think has the support of the whole industry. It certainly has not been discussed enough at this point to provide certainty, although you might disagree with that, Minister. ‘Reasonable portion’ is now based on 10 per cent of the words in an electronic work and 10 per cent of the number of pages of a non-electronic work, as the two main criteria.

We are urging that you maintain the current position of the existing provision in the Copyright Act 1968 until such time as you can at least consult with all the relevant parties to come to a much better position than the one you have arrived at now. It is not so much about the provision as drafted if it works the way you hope it will work—but I doubt that it will in fact achieve that and I think the parties will end up litigating to try to achieve some certainty. I always find it disappointing when we end up there, having to work out what the provision should or should not say and what copyright holders’ rights are. I will not spend any more time on this area. I have made the point that I need to make. Given the time, I will leave it at that.