Current exceptions

14.13 The Copyright Act contains a number of unremunerated exceptions for educational institutions. There are exceptions for:

• s 28—performing material, including playing music and films, in class;

• s 44—including short extracts from material in a collection;

• ss 135ZG, 135ZMB—copying insubstantial portions;

• s 200—use of works and broadcasts for educational purposes (copying works by hand in class, for example, on a blackboard; examination copying; copying a sound broadcast); and

• s 200AAA—proxy web caching by educational institutions.^[7]

14.14 There is also a broad exception in s 200AB of the Copyright Act for, among others, bodies administering an educational institution. The exception covers a use that is for the purpose of giving educational instruction and not for a profit.^[8] The use must amount to a special case, must not conflict with a normal exploitation of the material and must not unreasonably prejudice the legitimate interests of the owner of the copyright.^[9]

14.15 The Copyright Act also provides exceptions for fair dealing for the purpose of research or study, in ss 40 and 103C.^[10] However, these exceptions have been held not to extend to uses by educational institutions, but only to private research and study by individuals.^[11]

Criticisms

14.16 Copyright Advisory Group—Schools (CAG Schools) submitted that the current education exceptions are inflexible and feature a number of practical problems. For example, writing a quote from a book on an interactive whiteboard is not technically covered by an exception.^[12] CAG Schools also submitted that ‘showing an artwork on screen in class is treated differently than showing a poem on the same screen’^[13] and that ‘Australian schools pay to hand out small extracts of books to students in classrooms’.^[14] CAG Schools said that there are:

different rules regarding how much of a work can be made available to students, depending upon whether this is done by making the content available on the school intranet, learning management system etc or by handing out copies to each student. …

In an age of learning management systems, centralised content delivery systems and networked interactive whiteboards in classrooms, provisions such as s 135ZMD(3) make compliance with the statutory licence using modern education tools increasingly difficult. …

A school that decides that the most efficient way of delivering content to its students is via the school intranet or learning management system is effectively penalised for that choice. This is completely contrary to Government policy of encouraging schools to fully embrace digital technology to improve efficiency and educational outcomes.^[15]

14.17 The exception for short extracts in s 44 of the Copyright Act, others submitted, is ‘tightly circumscribed’, ‘employs vague terminology’, appears to be an ‘historical anachronism’, and is ‘another provision that makes a mockery of claims that the existing approach delivers certainty for users’.^[16]

14.18 Australian copyright law is also limiting the way in which Australian universities can deliver course content via massive open online courses, or MOOCs, Universities Australia submitted. This is putting Australian universities at a competitive disadvantage to universities in fair use jurisdictions like the United States. The existing exceptions are ‘insufficiently flexible to allow this kind of use’.^[17] However, Universities Australia stressed that:

fair use is not a ‘free for all’ for US universities operating MOOCs, and nor would it be if this exception were enacted in Australia. Some US copyright experts have suggested that the open nature of MOOCs will mean that fair use will operate in a more limited way than it does with password protected university e-reserves.^[18]

14.19 Copyright content made available through an open online course may indeed have a greater potential to harm a rights holder’s market than the same content distributed to a confined group of students. Universities should obtain a licence to use much of this material for online courses.

14.20 Universities Australia said the existing pt VB statutory licence does not apply to ‘content that is publicly accessible, regardless of whether it has been made available for educational purposes’.^[19] Copyright Agency however submitted that ‘dissemination of content via MOOCs is covered by the statutory licence, and much more comprehensively than arrangements in any other country’.^[20]