Small portions

14.65 Some publishers called for the removal of the ‘small portions’ exceptions in ss 135ZG and 135ZMB of the Copyright Act, so that educational institutions pay for the use of this material.

14.66 Walker Books Australia said that the ‘small portions’ exceptions are ‘perhaps not really fair in relation to works such as picture books, or poems, where a small portion might represent a significant part of a work’.^[58] Cengage Learning Australia submitted that

two pages is often the exact extent (often one page is) of a relevant classroom exercise or lesson plan that we create and seek to sell in a ‘bundle’ of classroom and homework exercises, tests and lesson plans. A two-page portion from our work can represent 100% of value of that portion downloaded.^[59]

14.67 Extending the licence to cover these uses ‘would provide a fairer system for all interested parties’, RIC Publications said, and ‘allow greater clarity for the Copyright Agency in its administration process, again for the benefit of all parties’.^[60]

14.68 Universities Australia, however, submitted that current copyright laws are ‘stifling academic engagement’. For example, it was argued that universities risk infringing copyright simply by making available on an online repository a student thesis featuring short excerpts or images from other copyright material.

To avoid this risk, they generally require their students to obtain permission for use of third party content (which can be highly costly, and in many cases impossible) or, alternatively, to remove this content from their thesis.^[61]

14.69 Many of these factors are relevant in any consideration of the fair use exception. For example, the third fairness factor is ‘the amount and substantiality of the part used’. This factor in the US fair use provision was considered in 2012 by a US District Court in Cambridge University Press v Becker (Georgia State University). The Court stated that the word ‘substantiality’ as used in the US fair use provision means ‘value’.^[62] It also stated:

In determining what percentage of a book may be copied, the Court looks first to the relationship between the length of the excerpt and the length of the book as a whole. Then, the relationship between the value of the excerpt in relation to the value of the book is examined. The Court also considers the value of a chapter in itself (rather than just a few paragraphs).^[63]

14.70 The Court also considered the other fairness factors. In relation to the fourth factor, which concerns market harm and is discussed further below, the Court stated:

Unpaid use of a decidedly small excerpt (as defined under factor three) in itself will not cause harm to the potential market for the copyrighted book. That is because a decidedly small excerpt does not substitute for the book. However, where permissions are readily available from CCC [Copyright Clearance Center] or the publisher for a copy of a small excerpt of a copyrighted book, at a reasonable price, and in a convenient format (in this case, permissions for digital excerpts), and permissions are not paid, factor four weighs heavily in Plaintiffs’ favor. Factor four weighs in Defendants’ favor when such permissions are not readily available.^[64]

14.71 Finally, the Court considered whether the use would ‘disserve the purposes of the copyright laws’, and concluded that ‘the unpaid use of small excerpts will not discourage academic authors from creating new works, will have no appreciable effect on Plaintiffs’ ability to publish scholarly works, and will promote the spread of knowledge’.^[65]

14.72 Similar analyses may be made when the fair use or new fair dealing exceptions recommended in this Report are applied to the use of small portions of copyright material for education. However, much may turn on the nature of the copyright material that is used. The works discussed in this US case may be distinguished from other educational material, such as resources created specifically for classroom use.