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I’m looking in more detail at the Copyright Amendment Bill 2006. Specifically, I’m looking at the provisions on the fair dealing exception for research or study.

When I looked at the Exposure Draft recently, I complained that:

‘The strangest thing, I think, about the Exceptions Exposure Draft is what happens in part 4 (page 14 of the Exposure Draft as released). …

It’s not entirely obvious on a first reading (I missed it, when I first looked), but the effect of the changes to section 40 is to limit fair dealings when they involve making a copy of a literary, musical or artistic work that is in a published edition (ie, in a hard copy, professionally published version) or in a published literary work in an electronic compilation (eg, a database). In these cases, under the new law, any copy will only be a fair dealing if it involves a reasonable portion. And reasonable portion is basically defined to mean 10% of the pages or words in the work.

In other words, it is no longer a fair dealing for research/study to make a copy of more than 10% of a book. Ever.

So, now I’ve looked at the provision again, alongside the Explanatory Memorandum. I don’t know that it does that anymore. In fact, I don’t know what it does anymore. The drafting is so confusing, that I’m really, really lost.

By the way, going through one provision, in a 220 page bill, in detail, when there are bigger picture issues, may appear to be something of an exercise in pointlessness. I think not, for two reasons. First, s40 is the provision that allows students and others all over Australia to copy parts of books for their own personal research. In practice, this is an important exception.

What is more, looking at the confusion that will reign if this provision is enacted makes a broader point: the drafting of this Bill is extraordinarily bad. It fails to achieve, in this and other ways, what it set out to achieve. Now, I know that drafting errors do happen. Looking at this one, in isolation, makes me worry: that more generally, some decision, somewhere, has been made to just ‘brazen it out’ – wack the Bill through, and hope to make the best of a bad (drafting) job. Pass the Bill, in its current form, and we are setting ourselves up for confusion, and various disasters.

Big calls? Let me show you. I’ll put the provision in the text, and insert my comments/explanations in italics. First, remember that s40(1) provides that a ‘fair dealing for the purposes of research or study’ is not an infringement. Section 40(2) sets out a list of factors that are to be taken into account in determining whether something is ‘fair’ when it involves making a reproduction. Now to the text of the amending Bill:

(5) Despite subsection (2), a reproduction, for the purposes of research or study, of a literary, dramatic, or musical wrok, or of an adaptation of such a work, that:
(a) is not contained in an article in a periodical publication; and
(b) is either:
(i) a work described in subsection 10(2) contained in a published edition described in that subsection; or
(ii) a work described in subsection 10(2A) in electronic form;

This first part of the provision sets up the scope: what we are talking about, here, is basically works that are not individual journal/magazine articles, but which are works ‘contained in’ a published edition longer than 10 pages long, or in electronic form. Let’s just note, at the outset, that this concept of the work being ‘contained in’ the published edition is pretty weird. It suggests that where the published edition is of just one work (eg, a book), this provision doesn’t apply at all. But to be fair, that’s existing weirdness – s10(2) is in the same terms. but let’s go back to the text. Having set up the scope, here comes the kicker: the reproduction:

is a fair dealing with the work or adaptation for the purpose of research or study if, and only if, the reproduction is taken under whichever of those subsections is relevant to contain only a reasonable portion of the work or adaptation.

So here’s the strange bit. Section 10(2) and 10(2A) famously set up a kind of ‘deeming’ – setting out certain proportions of a work that are taken to be ‘reasonable portions’ of a work. Famously, they provide that 10% or less of the pages of a published edition is a reasonable portion. So you would think, wouldn’t you, that the effect of this amending law is to say that a reproduction of something in a published edition can be a fair dealing if and only if it is 10% or less of the pages of the book, or a chapter of the book. That’s what I said when I was complaining before. OK. But here’s the EXTRA kicker. Check out the language of ss10(2), which I’ll take as an example:

10(2) Without limiting the meaning of the expression ‘reasonable portion’ in this Act, where a literary, dramatic or musical work… is contained in a published edition of that work … a copy of part of that work, as it appears in that edition, shall be taken to contain only a reasonable portion of that work if the pages that are copied in the edition:
(a) do not exceed, in the aggregate, 10% of the number of pages in that edition; or
(b) in a case where the work is divided into chapters exceed, in the aggregate, 10% of the number of pages in that edition but contain only the whole or part of a single chapter of the work.

Look at it. The language here is non-exhaustive, right? Things other than the magic 10% can be a reasonable portion. So, looking at it again tonight, I thought – well that’s odd. I guess that means that in fact this new s40(5) isn’t so limiting after all. It says that a dealing is a fair dealing if and only if it fits the ‘reasonable portion’ requirement. But that requirement/definition is open-ended. It still means 11% could be a reasonable portion, because of those magic words ‘without limiting the meaning of the expression’.

But wait. No, that’s not right. Because if you look more closely again, you will see that those quantitative limits – the 10% or chapter – are the bits that are, under 10(2), taken to be a reasonable portion. We are back where we started. I think. Assuming that the court accepts that when the new s40(5) refers to something being ‘taken to be’ a reasonable portion it is referring to the bits in s10(2) that follow that phrase. phew. But do you see my problem? 11% might be a ‘reasonable portion’ under s10(2), because s10(2) doesn’t limit the meaning of reasonable portion. But 11% is not ‘taken to be‘ a reasonable portion under s10(2) – only 10% is ‘deemed’ reasonable in this way.

And here’s another thing. Tell me, on the current drafting of the new s40(5), whether you still have to go back to the s40(2) factors even if you have a reasonable portion. If you have a reasonable portion, is that a sufficient condition (9% is fair) or a necessary condition (9% is fair provided other requirements fulfilled)? There is no deeming element to the provision.

If the latter, then you might STILL, even at 9%, have to convince a court that your dealing is fair. To date, the 10% rule has given us some certainty of when you were safe. Pop goes that measure of certainty. Deeming provision becomes absolute limitation on what you can copy. On this reading, certainty is a one way street. Copyright owners are the only ones who get certainty – certainty of when their rights are infringed.

So we are all massively confused by this drafting. Let’s see whether the Explanatory Memorandum helps. here’s what the Explanatory Memorandum says:

New sub-s 40(5) makes the definition of ‘reasonable portion’ in sub-s 10(2) and sub-s 10(2A) exhaustive for the types of works it covers for the purposes [of – sic] s40. Thus if a portion satisfies the relevant definition of ‘reasonable portion’ in either sub-s 10(2) or 10(2A) it is definitively reasonable. If it fails the relevant definition, it is definitively not reasonable

Does that help you? No, me neither. How do you make a definition, which on its terms does not limit the meaning of ‘reasonable portion’, ‘definitive’?

Here’s the thing. I think what they meant to do was addres a criticism raised by Sam Ricketson in a paper he wrote a few years ago. Professor Ricketson’s criticism, at the time, went along these lines:

• section 40(3) ‘deems’ certain dealings to be fair dealings
• a copy is deemed fair if it does not exceed a reasonable portion
• under 10(2), 10% or less is ‘taken to be’ a reasonable portion,
• BUT 10(2) does not limit what may be a ‘reasonable portion’. You can copy >10% and still argue it is reasonable, and hence deemed fair dealing. And, there is no guidance in the legislation for when a copy of >10% would be a reasonable portion.
• What is more, because less than 10% is ‘deemed’ fair, you might be excusing uses which in fact aren’t fair, having regard to the market for the copyright owners’ works.

So I think the government were trying to say:

• reasonable portion is still a deemed fair dealing
• reasonable portion is <10%
• anything else, refer to s40(2).

That is, I think the government were trying to make the ‘deeming provision’ apply only to things less than 10%, with anything else subject to the requirements of s40(2).

But that’ not what they’ve done. What they’ve done is make these definitions definitive of what constitutes a fair dealing (instead of making it definitive of what constitutes a reasonable portion, and then deeming reasonable portions to be fair dealings). Thus:

• if you copy >10%, you have no recourse. It’s just not a fair dealing. Even if the book is out of print, and no copyright owner still in existence would be harmed;
• if you copy 9%, you have to consider s40(2).

And that, my friends, is the stupidity and confusion of it all. I consider myself a reasonable bright person, and a specialist in copyright law. I am really, really, confused by this provision. Imagine how many other people are going to be confused?

I reiterate the points I made above. The moral of this story is that the drafting of this Bill is extraordinarily bad. It fails to achieve, in this and other ways, what it set out to achieve. What, in a couple of years’ time, will we discover this provision means? And what else are we going to discover, a year or two down the track?