Copyright in the classroom a practical guide

The law does this by setting out who owns copyright and granting them exclusive rights to control the use of their material.. To balance the need to protect the legitimate interests of c

Copyright in

the Classroom:

A Practical Guide

E156v01

Copyright in the Classroom: A Practical Guide

June 2017

ISBN: 978-1-920778-30-9

Author: Nathan Webster

© Australian Copyright Council 2017

Cover design: Slade Smith Layout design: ePrintDesign.com.au

All legislative material herein is reproduced by permission but does not purport to be the official

or authorised version It is subject to Commonwealth of Australia copyright

For enquiries about reproduction or other uses of this publication, please contact:

Australian Copyright Council

PO Box 1986 Strawberry Hills NSW 2012 Australia

T: +61 2 9101 2377 F: +61 2 9101 2399

E: info@copyright.org.au W: www.copyright.org.au

Twitter: @AusCopyright   Facebook: Australian Copyright Council

ACN 001 228 780

Australian Copyright Council

The Australian Copyright Council is an independent, non-profit organisation Founded in 1968,

we represent the peak bodies for professional artists and content creators working in

Australia’s creative industries and Australia’s major copyright collecting societies

We are advocates for the contribution of creators to Australia’s culture and economy; the importance of copyright for the common good We work to promote understanding of

copyright law and its application, lobby for appropriate law reform and foster collaboration between content creators and consumers

We provide easily accessible and affordable practical, user-friendly information, legal advice, education and forums on Australian copyright law for content creators and consumers

The Australian Copyright Council is an independent, non-profit organisation, partly funded

by the Australia Council for the Arts Our mission is to advance the arts and the creative industries in Australia by providing information and advice about copyright

The Australian Copyright Council has been assisted by the Australian Government

through the Australia Council, its arts funding and advisory body.

© Australian Copyright Council 2017

Table of contents

1 About this publication

1.1 Who this publication is for 1

1.2 How this publication is set out 1

1.3 Information, not legal advice 1

1.4 Other sources of information 1

1.5 Sources of copyright law 2

1.6 New amendments to the Copyright Act 2

2 Copyright basics 2.1 Introduction 3

2.2 What is the purpose of copyright? 3

2.3 What does copyright protect? 3

2.4 What is not protected by copyright? 4

2.5 How long does copyright last? 5

2.6 Who owns copyright? 5

2.7 Rights of the copyright owner 6

2.8 When do you need permission? 7

2.9 Moral rights 7

2.10 Performers’ rights 8

2.11 Frequently asked questions 10

3 Free exceptions for educators 3.1 Introduction 11

3.2 Performing and communicating copyright material in class 11

3.3 Copying works and broadcasts for educational purposes 12

3.4 Copying and communicating works and broadcasts to assist people with disabilities 12

3.5 Special case exception 13

3.6 Libraries and archives 13

3.7 Fair dealing 13

3.8 Frequently asked questions 15

4 Licences for educational institutions 4.1 Introduction 17

4.2 The statutory licence: copying and communicating text, images and notated music 17

4.3 The statutory licence: copying and communicating TV and radio 18

4.4 APRA AMCOS, ARIA and PPCA licences: Performing, copying and recording music 19

4.5 Roadshow PPL Schools Co-curricular Licence: playing films outside of class 22

4.6 Frequently asked questions 22

5 Copyright in the modern classroom

5.1 Introduction 24

5.2 Apps and interactive games 24

5.3 Learning management systems: cloud computing, open source platforms and websites 25

5.4 Tablets, laptops and desktop computers 25

5.5 Student and staff presentations: PowerPoint, Prezi and Keynote 26

5.6 Streaming Netflix, Spotify, YouTube and podcasts in class 27

5.7 Distance education and MOOCs 28

5.8 Using social media: Facebook, Twitter, Snapchat and Instagram 28

5.9 3D printing 29

5.10 Frequently asked questions 30

6 Pre-licensed and open education resources 6.1 Introduction 32

6.2 Pre-licensed material 32

6.3 Open education resources 32

6.4 Government material 32

6.5 Creative Commons licences 32

6.6 Frequently asked questions 33

Appendix A Notices on or near copying equipment 34

Appendix B Copyright collecting societies 36

1 About this publication

1.1 Who this publication is for

This guide is for teachers and lecturers working in Australian schools, universities and other educational institutions It provides an overview of the main copyright issues that arise in a classroom setting in Australia

1.2 How this publication is set out

We begin by providing an introductory overview of copyright law in Australia We then address issues that are specific to teachers and lecturers in the following parts

We set out the suite of special exceptions and licences that are available to teachers and lecturers as well as students, and discuss how these and other issues enable the use of technology in the classroom in certain ways and restrict them in others

We cover the use of traditional learning materials, such as books, journal articles, artworks, photos and sheet music, as well as new technologies such as apps, open-source platforms, social media, streaming services, tablets and mobile devices

1.3 Information, not legal advice

The information contained in this publication is not legal advice It is provided on the basis that it is to be used for general purposes only If you need to know how the law applies to your situation, please get advice from

a lawyer

In some cases, a Copyright Council lawyer may be able to assist you with your copyright issue in the first instance – our service is for professional creators and those working in arts and cultural organisations, including educational institutions and libraries Our information sheets may also provide useful guidance

1.4 Other sources of information

In addition to this guide, the Copyright Council publishes the following guides for educational institutions:

> Educational Institutions: Using Text & Images

> Sound & Screen in Education: An In-Depth Guide

> Education and Copyright Compliance: A Toolkit

The council also publishes information sheets and other detailed guides, and runs an annual training program

on a large range of copyright issues See www.copyright.org.au

Universities Australia

Teachers and lecturers working in universities can get assistance from Universities Australia They publish contact details for university copyright officers in addition to copyright and policy information See www.universitiesaustralia.edu.au

National Copyright Unit

Teachers in schools and TAFEs can contact the Copyright Advisory Group (CAG), supported by the National Copyright Unit (NCU), for information and advice NCU, through CAG, represents all government schools and most Catholic and independent schools as well as all TAFEs (excluding Victorian TAFEs) See smartcopying.edu.au

Copyright collecting societies

There is useful information on the websites of Copyright Agency (www.copyright.com.au), Screenrights (www.screenrights.org) and APRA AMCOS (apraamcos.com.au) about the education licences they manage

1.5 Sources of copyright law

Copyright law in Australia is made up of the Copyright Act 1968 (Cth) (the Copyright Act) and decisions of courts

that have applied and interpreted it While there are some similarities between Australia’s copyright law and copyright regimes in other countries, there are also significant differences In this book, our primary focus is

on Australian copyright law

1.6 New amendments to the Copyright Act

There are new amendments to the Copyright Act that affect educational institutions and libraries The Copyright

Amendment (Disability Access and Other Measures) Bill 2017 was passed on 15 June 2017 The amendments

streamline the current educational statutory licence provisions, and make it easier for educational institutions and copyright collecting societies to agree on licensing agreements They provide simple, clear rules for libraries, archives and key cultural institutions to make preservation copies of copyright material They also simplify the exceptions for libraries and update the provisions that enable accessible-format versions for people with disabilities

2 Copyright basics

2.1 Introduction

While it may not be something we often think about, copyright plays an important role in education From the invention of the printing press to new technologies, copyright is at the heart of the relationship between the creation and dissemination of educational materials

2.2 What is the purpose of copyright?

Copyright encourages the creation and dissemination of cultural goods by rewarding the intellectual skill and effort of the author of the material The law does this by setting out who owns copyright and granting them exclusive rights to control the use of their material

To balance the need to protect the legitimate interests of copyright owners with the needs of the public to gain access to their work, the law outlines situations where copyright material can be used without permission These provisions can take the form of sector-specific statutory licences – for example, the statutory licences for educational institutions and government – or free exceptions that address specific public policy purposes

2.3 What does copyright protect?

The law sets out eight categories of copyright-protected materials These are split into two broad categories:

“works” – traditional forms of creative expression, such as literature, music and artworks – and “subject matter other than works”, which is material that typically builds upon “works”, such as films, recorded music and television broadcasts

Works

The following are “works” protected by copyright:

> text, such as textbooks, e-books, blog posts, song lyrics, poems and other written works, such as journals, articles, reports, diaries, letters and emails (“literary works”);

> compilations, including tables of information, databases, catalogues and registers (also in the category of

“literary works”);

> computer programs and apps (also in the category of “literary works”);

> screenplays, choreography and scripts (“dramatic works”);

> music and musical compositions (“musical works”);

> paintings, drawings, sculptures, cartoons, photographs, logos, charts, diagrams, plans and maps

(“artistic works”);1

> works of artistic craftsmanship, such as pottery, tapestry, textiles, basketwork, jewellery, fashion

accessories, medals and costumes (also in the category of “artistic works”); and

> buildings, models of buildings and architectural plans (also in the category of “artistic works”)

Subject matter other than works

The following are “subject matter other than works” that are protected by copyright:

> the images and sounds in a film (“cinematograph films”) are protected separately from copyright in

underlying works such as a screenplay or music;

> sounds recorded as an audio file (such as WAV, AIFF, FLAC or MP3) or on vinyl (“sound recordings”) are protected separately from copyright in the music or other works recorded;

> broadcasts of television and radio programs are protected separately from copyright in films, music and other material which is transmitted; and

> “published editions” (the typographical arrangement of the whole of a published text) are protected separately from copyright in any works included in the published edition

A single item may contain multiple copyright materials

It is common for a single item to contain several types of copyright-protected material, particularly when dealing with material that falls into the category of “subject matter other than works”, such as films and sound recordings For example, in the case of sound recordings, there may be underlying works, such as lyrics and music scores

Requirements for protection

Something will be protected by copyright if it meets the following requirements:

> it falls into one of the eight categories of copyright-protected material;

> it is sufficiently “original”;

> it is in a “material form”; and

> it has a sufficient connection to Australia

The concept of “originality” has less to do with creativity and more with showing that there was sufficient skill and human effort involved in creating the material This is a relatively low threshold; the courts have said that something will be generally considered to be “original” if it is more than a mere copy of something else

2.4 What is not protected by copyright?

Copyright does not protect every creative endeavour In some situations, the material may be too insubstantial

or lack the requisite “originality” to meet the requirements for protection In some situations, other laws may apply instead of copyright, such as privacy, defamation, trade marks, design law, patents, contract law, and competition and consumer laws

Names, titles and slogans

Very small combinations of words, such as names, titles and slogans, are unlikely to be substantial enough to

be a “literary work” capable of copyright protection Other laws may be relevant For example, a music class

in your institution wants to participate in the annual battle of the bands under the name “School of Rock”, a reference to a 2003 film of the same title starring Jack Black This will not be an infringement of copyright

Ideas and information

Ideas and information are not protected by copyright Rather, it is the material way in which these things are expressed that is protected For example, a history lecturer in your institution can freely use facts, such as dates and times of historical events, without infringing copyright While the facts themselves are information and are not protected by copyright, the wording and structure of a description that provides an account of events that took place will be protected

Styles, methods and techniques

Styles, methods and techniques are not protected by copyright Rather, it is the material form in which these things are expressed that is protected For example, in the case of recipes, information about the ingredients, method of preparation and cooking techniques is not protected by copyright However, the written expression

of a recipe will be protected

Functional items

The Copyright Act contains provisions that are often referred to as the “copyright/design overlap provisions” These are intended to prevent dual protection under designs and copyright law for things that should only be

protected under the Designs Act 2003 (the Designs Act) Where something is, or could be, registered as a design,

and is applied “industrially”, a right holder’s ability to rely on copyright protection is very limited

2.5 How long does copyright last?

In Australia, the general rule for “works” is that copyright lasts for the life of the author plus 70 years For

“subject matter other than works”, the term of protection is in relation to the year the material was made or first published Once the relevant period has elapsed, copyright cannot be revived, either by republication or

by any other procedure

The term of copyright protection was extended in 2005 as a result of the Australia–US Free Trade Agreement Before 2005, copyright generally lasted for the life of the author plus 50 years, or 50 years from the year of publication However, if copyright had expired prior to 1 January 2005, it was not revived under the new rules Due to these changes, two important exceptions arise in relation to “works”:

1 If the author died prior to 1955, copyright has expired; and

2 Copyright in all photographs taken prior to 1955 has expired

We have further information about the term of protection for each category of copyright material in our

information sheet Duration of Copyright.

2.6 Who owns copyright?

Generally, the creator is the first copyright owner However, if there is no written agreement, or if an agreement does not state who owns copyright, then there are rules in the Copyright Act that will determine ownership

Joint authorship

Where two or more people create a work together, and the contribution of each is not separate from the contribution of the other(s), they will be “joint authors” of the work These authors own copyright separately from each other This means that if you are creating material in collaboration with someone else, such as an academic paper, or seeking permission to use a work of joint authorship, you will typically need permission from each copyright owner to use this material

Volunteers

Volunteers aren’t “employees” and will therefore own copyright in any work they create, unless they have entered into an agreement that provides otherwise As such, if you have any volunteers creating work for your educational institution and it is desirable for your institution to own copyright, it is important to ensure that any agreement you have with the volunteer sets out that your institution owns copyright in any work created during their volunteering

Government

If the material was created or first published under the “direction or control” of a State, Territory or Commonwealth government, the government is the first copyright owner This rule does not apply to local governments or State and Territory public schools This means that if you are creating material for a Commonwealth or State or Territory government, it will be important to have in place an agreement setting out who owns copyright in the work that you are creating for them

Films

Unless there is an agreement in place, if a person agrees to make a film (including a video or DVD) in return for payment (or some other benefit), the person who pays generally owns the copyright Otherwise, the first

Sound recordings

Performers have part ownership of copyright in sound recordings of their live performances In the absence

of an agreement to the contrary, the first owners of copyright in a sound recording of a live performance are the performer(s) and the person who owns the recording medium (the master, for example) This rule applies

to sound recordings protected by copyright on or after 1 January 2005

Commissioned work

Generally, where a person is commissioned to create copyright material, in the absence of an agreement to the contrary that person (and not the commissioning party) will own copyright in the commissioned material However, there are some exceptions Unless there is an agreement to the contrary, someone who commissions another person to do any of the following will generally own copyright:

> take a photograph for a “private or domestic purpose” (such as a family or wedding photograph);

> paint or draw a portrait; or

> make an engraving

However, if the person who commissioned the work made known at the time of commissioning the way they intended to use the work, the person who took the photograph or created the portrait or engraving may be able to restrain the copyright owner from using the work in any other ways

Subsequent owners of copyright

The rules set out above determine who is the first copyright owner if there is no agreement at the time to the contrary Copyright can subsequently be transferred or sold (“assigned”), inherited or licensed, so the first copyright owner may no longer be the person holding the rights you want to use

2.7 Rights of the copyright owner

Under the Copyright Act, the copyright owner is granted exclusive rights to control certain uses of their work

It is important to identify what type of copyright material you are dealing with, as the rights involved with each can be slightly different

Works

In relation to literary, dramatic, musical and artistic works, the owner of copyright has the exclusive right to:

> reproduce the work;

> publish the work; and

> digitally communicate the work to the public

In addition, for literary, dramatic and musical works (but not artistic works), the owner of copyright has the exclusive right to:

> perform the work in public; and

> make an adaptation of the work

Subject matter other than works

For sound recordings and films, the owner of copyright has the exclusive right to:

> make a copy of the sound recording or film;

> play the sound recording or screen the film in public; and

> communicate the sound recording or film to the public

For television and radio broadcasts, the owner of copyright has the exclusive right to:

> make a film or sound recording of the broadcast; and

> re-broadcast it or communicate it to the public

Rental right

Owners of copyright in computer programs, sound recordings, and works on sound recordings also have the exclusive right to rent articles such as CDs which contain this material This right does not apply to other material (such as books, videos and DVDs)

2.8 When do you need permission?

In most situations, the use of third-party materials by teachers and lecturers will be covered by the statutory licences for educational institutions and exceptions to copyright, which we discuss in greater detail in Chapters

3 and 4 Where these licences and exceptions don’t apply to a use, you will need to consider if you require additional permissions

In general, you need permission to use all or any “substantial part” of someone else’s copyright material in any of the ways reserved to the copyright owner, unless a licence or an exception to infringement applies Determining whether you are using a “substantial part” of someone else’s material is one of the most difficult areas of copyright law, as there is no definition of “substantial part” in the Copyright Act

What is “substantial” is a question of fact and degree, and depends on the circumstances of each case This is

a question of quality over quantity In cases that have looked at the issue of “substantial part”, the courts tend

to look at whether the part taken is “important”, “essential”, “material” or “distinctive” to the original material from which it was taken Generally, if what you are using is recognisable as having originated from a particular source, it is likely to be a “substantial part”

In some situations, you may require consent from the author and/or performers in addition to seeking permission from the copyright owner For example, if you wish to use copyright material in a way that may infringe the author’s moral rights, you may need to obtain the author’s consent in addition to permission from the copyright owner This will also be the case if you want to record a performance, in which case you will need to obtain consent from the performers to record their performance, in addition to permission from the copyright owner We discuss moral rights and performers’ rights in further detail below

> the right to be attributed as the author of the work;

> the right not to have their work falsely attributed; and

> the right to take action if their work is treated in a derogatory way (that is, used in a way that is prejudicial

to their honour or reputation)

Moral rights apply to literary, musical, dramatic and artistic works and films In general, moral rights endure for the same period as copyright, and they remain with the creator, or the creator’s heirs, until those rights expire

As these rights are personal to the creator, they cannot be bought or sold

The right of attribution

A creator has the right to be attributed as author of his or her work whenever it is used in certain ways, including when it is copied or communicated to the public The attribution must be clear and reasonably prominent, so that a person who gets a copy of the work will have notice of the creator’s identity

The right not to have work falsely attributed

A creator has the right not to have the authorship of his or her work attributed to someone else, as well as the right not to have an altered work attributed as being his or her unaltered creation

The right of integrity

A creator has the right to have the integrity of his or her work respected – that is, the right not to have the work subjected to derogatory treatment that prejudices his or her honour or reputation Derogatory treatment might involve a mutilation or a material distortion of a work, or using a work in a context that prejudices the author’s honour or reputation

How long do moral rights last?

Generally, moral rights continue until the end of the period of copyright In the case of published material, that

is typically the life of the author plus 70 years However, in respect of films only, the right of integrity in a film lasts until the relevant producer, director or screenwriter dies

What are the exceptions to moral rights?

There are some situations in which a person who deals with a work does not have to respect moral rights For example, it will not be an infringement of moral rights:

> if a dealing with a work is “reasonable” in all the circumstances; or

> if the creator has given written consent to what would otherwise be an infringement of his or her rights

Reasonableness

There are several factors to be considered when assessing whether a person has acted reasonably These include:

> the nature of the work;

> the purposes for which it is used;

> relevant industry practice;

> whether the work was created during employment or under a contract of service; and

> if there are two or more authors, their views about the failure to attribute or derogatory treatment

For example, if you commission a graphic designer to create a new logo for your institution’s publications, it may be “reasonable” for you to not identify the name of the graphic designer in a clear and prominent way, which would otherwise infringe their right of attribution

For detailed information about moral rights and the exceptions to these rights, see our information sheet

Moral Rights.

2.10 Performers’ rights

Performers also have rights in their performances, and in some instances, they may also own copyright in recordings of their performances This means that where you are recording a performance you will generally require the performers’ consent and permission from the copyright owner of the work being performed Performers who perform musical, dramatic or literary works, circus or variety acts, or expressions of folklore have the following rights:

> the right to grant or refuse consent to the reproduction and communication of a performance;

> co-ownership of copyright in a sound recording of a performance; and

> moral rights

Consent to record a performance

Performers have the right to grant or refuse consent for their performances to be:

> recorded (audio or video); or

> communicated to the public (via radio or TV broadcast, or online, for example)

Someone who does any of the following things without permission may infringe a performer’s rights:

> makes an unauthorised recording;

> makes a copy of an unauthorised recording, where the person knew or ought to have known that the recording was unauthorised;

> uses an audio recording on a soundtrack where the performer did not consent to this use at the time the performance was recorded and the person knew this;

> deals commercially with an unauthorised recording, if the person knew or ought to have known that the recording was unauthorised; or

> makes an unauthorised communication of the performance to the public

A use is “unauthorised” if the performer has not consented to it

Performers’ reproduction and communication rights are separate from and additional to copyright in the material that is performed, and to their moral rights in their performance

Ownership of copyright in sound recordings

The general rule is: in the absence of an agreement to the contrary, the first owners of copyright in a sound recording of a live performance are the performers and the person who owns the relevant recording medium

on which the recording was made (the master copy, for example) However, there are some exceptions to this:

> If a recording of a performance is commissioned, the performer does not own a share of copyright in the sound recording Rather, the commissioning party becomes the copyright owner in the sound recording

> Subject to any agreement to the contrary, where a performance is recorded during a performer’s

employment, the employer will own copyright in the sound recording

Performers’ moral rights

Performers have moral rights in performances that are captured on sound recordings The provisions came into effect on 26 July 2007 This means that for all sound recordings, the rights are:

> the right to be attributed for the performance;

> the right not to have the performance falsely attributed; and

> the right of integrity in the performance

Attribution

The right of attribution is the right to be identified as a performer:

> in a live performance, whenever the performance is staged or communicated to the public; and

> in a performance recorded in a sound recording, whenever that recording is copied or communicated to the public

If a performer has not made known how he or she wishes to be identified, any “reasonable” form of identification which is “clear and reasonably prominent” may be used If a performance is presented by performers who use

a group name, identification using the group name is sufficient

False attribution

Performers have the right not to have their performance falsely attributed In the case of a live performance, false attribution involves falsely stating or implying that:

> a person is, was, or will be a performer in the performance; or

> the performance is being, was, or will be, presented by a group of performers

In the case of recorded performances, false attribution involves:

> implying falsely that a person (or group) is a performer by affixing their name to, or on, a sound recording;

> dealing with a sound recording or communicating a sound recording to the public knowing that a person (or group) named in, or on, the sound recording is not a performer;

> dealing with a recorded performance that has been altered by someone other than the performer as an unaltered performance knowing that it is not (except if the effect of the alteration was insubstantial or was required by law)

The right of integrity in the performance is the right not to have a live or recorded performance subjected to derogatory treatment Derogatory treatment is the doing of anything that results in a material distortion or mutilation of the performance, or a material alteration to the performance, that is prejudicial to the performer’s reputation

Defences to infringement of moral rights in performances

A failure to attribute a performer, false attribution of a performer, or derogatory treatment of a performance, does not infringe the performer’s moral rights if the performer consented to the act or omission A failure to attribute a performer or a derogatory treatment of a performance does not infringe the performer’s moral rights if the act or omission was “reasonable” in the circumstances

For further information about performers’ rights, refer to your organisation’s policy or speak to your peak

body See also our information sheet Performers’ Rights.

2.11 Frequently asked questions

Who owns copyright in material created by students?

In general, the first owner of copyright is the author of the work This means that students will typically own copyright in the works that they author, unless they have entered into an agreement stating otherwise A situation where a student might not own copyright in their work is where they are concurrently employed

by the educational institution, for example, as a researcher or tutor In this case, copyright in any material created by the student for their employer will be owned by the employer This does not necessarily extend to material they continue to create in their capacity as a student For further information, see our information

sheet Ownership of Copyright.

Are the works of William Shakespeare protected by copyright?

Copyright in the complete works of William Shakespeare has expired, and they are in the public domain However, it is common to see “published editions” of the works of Shakespeare and in some instances these may be separately protected under “published edition” copyright This is a narrow form of protection for the typographical layout of the edition, and lasts for 25 years from the year of publication It is separate to the underlying works contained in the edition However, in some cases an edition may contain new material, such as annotated notes, that may be separately protected by copyright For further information, see our

information sheet Duration of Copyright.

Where can I find public domain books?

You can find public domain books in your bookstore or at the local library It is also common for e-book providers to make available free editions of public domain books for download through their app or shop site Another source of public domain books is Project Gutenberg, which also offers a range of public domain materials that are Digital Rights Management (DRM) free and available in a range of formats See gutenberg.net.au

What do I need to include when providing an attribution?

The author has the right to specify the way they wish to be attributed by someone else using their material However, if the author has not specified the way in which they want to be attributed, an attribution should identify the name of the author in a “clear and reasonably prominent” manner, so that someone viewing the work is made aware of the information In some situations, you may be able to rely on an exception to the right

of attribution, for example, where you obtain consent from the author or it was not reasonable to provide the

attribution in the circumstances For further information, see our information sheet Moral Rights.

3 Free exceptions for educators

3.1 Introduction

Special provisions in the Copyright Act enable educational institutions to use copyright material for educational purposes without the need for permission from the copyright owner Some are free exceptions while others involve remuneration to copyright owners

The remunerated provisions are called “statutory” licences, as permission is set out in the Copyright Act We discuss the statutory licence for educational institutions in Chapter 4

The Copyright Act also sets out free exceptions that address specific policy purposes Here, we address the main exceptions for educational institutions

3.2 Performing and communicating copyright material in class

The main exception for teachers and lecturers enables them to perform and communicate copyright material

in class without the need for permission if:

> it is in the course of educational instruction which is not given for profit; and

> all the people in the audience are giving or receiving instruction, or are directly connected with the place where the instruction is given

Common examples

Some examples of the application of this exception include:

> reading out a textbook in class;

> performing a song in class using sheet music;

> performing a dramatic work in class;

> showing students an image of an artwork online;

> screening a DVD in class;

> streaming a YouTube video in class;

> streaming Spotify in class;

> streaming catch-up TV in class; and

> listening to digital radio in class

Where it won’t apply

It’s important to note that this exception will not apply in situations where:

> the material is not being used for educational purposes; or

> the educational instruction is given for profit; or

> the audience is not limited to persons who are taking part in the instruction or otherwise directly

connected with the place where the instruction is given

Other considerations when relying on this exception

When you access copyright material online or via a subscription service, it is likely that you may have agreed to certain terms and conditions that govern the use of the material It is common for these terms to require that the user agree to use the material for private and domestic purposes only If the material you want to use is covered by such a licence, you may be in breach of the terms if you screen it in another situation

Screening films or DVDs for non-educational purposes

The schools sector has negotiated a licence with Roadshow PPL that allows them to screen films for educational purposes This licence is known as the “Co-curricular Licence” We discuss this further in Part 4.5 Schools will also need to ensure they are covered by an appropriate APRA licence to cover the public performance of the music tracks included in films they screen outside of class

non-3.3 Copying works and broadcasts for educational purposes

There are two more practical exceptions that teachers and lecturers are likely to implement in their day-to-day work These enable the copying and adaptation of copyright material in class and for assessment purposes

Putting copyright works into exams

Under this exception, literary, dramatic, musical or artistic works can be copied or adapted for use in an exam question, or in response to such a question “Adaptation” includes arranging music or translating a literary work from one language into another “Examination” is not defined in the Copyright Act; however, it is our view that this will likely apply to other forms of personal assessment such as pop quizzes and assignments

This exception also allows for an electronic copy of the work or adaptation to be made and communicated, for example, by posting an exam on the intranet or emailing it to students

Writing out by hand

Teachers and students can copy or adapt works in the course of educational instruction, so long as the copy

is not made on an electronic device where it can be copied This allows for writing out text, translations or musical arrangements on a whiteboard, blackboard or on paper, provided it is by hand

The exception does not cover scanning or photographing what you have written However, this is likely to be covered by the statutory licence

3.4 Copying and communicating works and broadcasts to assist

people with disabilities

The new amendments to the Copyright Act replace the previous disability schemes with new provisions that include a new fair dealing exception for purpose of access by persons with a disability and an exception for the use of copyright material by organisations assisting persons with a disability “Person with a disability” is defined in the Copyright Act to mean a person with a disability that causes the person difficulty in reading, viewing, hearing or comprehending copyright material in a particular form

Fair dealing for purpose of access by persons with a disability

The new fair dealing exception allows for the use of copyright material for providing access to one or more persons with a disability It covers use by any of those persons or by another person assisting them

To rely on the fair dealing exception, the use must be for providing access to persons with a disability and it must also be “fair” There are several factors are set out in the Copyright Act which may be considered when determining whether the use is “fair” These include:

> the purpose and character of the dealing;

> the nature of the copyright material;

> the effect of the dealing upon the potential market for, or value of, the material; and

> if only part of the material is dealt with, the amount and substantiality of that part, taken in relation to the whole material

Use of copyright material by organisations assisting persons with a disability

There is a second disability exception that allows organisations assisting persons with a disability to use copyright material to assist those person(s) to access the material in a format that they require “Organisation assisting persons with a disability” is defined in the Copyright Act to include educational institutions To rely

on the exception, an educational institution must be satisfied that the material, or the part of the material required, cannot be obtained in that format within a reasonable time at an ordinary commercial price This means that you will first need to check whether the copyright material you want can be obtained in the format required by the person(s) before you make an accessible-format copy

3.5 Special case exception

The special case exception allows an educational institution to use copyright material for educational instruction in certain cases, where the use is not covered by other specific exceptions in the Copyright Act For example, it does not apply to a use that would be covered by the free exceptions for educational institutions

or the statutory licence for copying and communicating works and broadcasts

Educational institutions may make use of copyright material under the exception for the purpose of giving educational instruction The term “educational instruction” may be a narrower concept than “educational purposes”, a term used elsewhere in the Copyright Act In our view, it means that under the exception an educational context is limited to use of copyright material for teaching purposes

The section only applies if:

> the circumstances of the use amount to a special case;

> the use does not conflict with a normal exploitation of the material;

> the use does not unreasonably prejudice the legitimate interests of the owner of the copyright; and

> the copying is not made for commercial advantage or profit

For educational institutions with a library, the officer administering the library may also use this exception for the purpose of maintaining or operating the library

The special case exception is more complex than other exceptions in the Copyright Act If you want to know if the exception applies to your situation, it is generally a good idea to get further advice

3.6 Libraries and archives

Those working in educational institutions with libraries and/or archives may be able to take advantage of the special provisions for non-profit libraries and archives that allow them to copy and communicate material in their collection without permission or payment of a fee

The Copyright Act does not define “library”, but various provisions suggest that a library is an entity that owns

a collection of materials and provides certain services in relation to it, including access to the collection

“Archives” is defined as a collection of material of historical significance or public interest, being maintained for the purpose of conserving and preserving the material The collection must not be maintained and operated for profit

These exceptions apply for the following purposes:

> copying for clients’ research or study;

> copying for other libraries;

> copying for preservation;

> copying to replace lost, stolen or damaged items; and

be considered when determining whether a use is “fair” These include:

> the purpose and character of the dealing;

> the nature of the work or adaptation;

> the possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial

> in a case where only part of the work or adaptation is copied, the amount and substantiality of the part copied in relation to the whole work or adaptation.

When determining whether a use is “fair”, no one factor will be determinative

Research or study

Copyright-protected materials can be used for the purposes of private research or study Under Australian copyright law, this is commonly considered to be the private research of the person carrying out the copying (but not, for example, copying for research that is to be carried out by others) The Act deems reproduction of

a “reasonable portion” to be “fair”

Text or notated music

If you are reproducing text or printed music from a hardcopy edition of 10 or more pages, the Act deems that

it is fair to copy:

> 10% of the number of pages; or

> one chapter, if the work is divided into chapters

For text published in electronic form, it is deemed fair to copy:

> 10% of the number of words; or

> one chapter, if the work is divided into chapters

If the material is available in hardcopy and separately in electronic form, you can choose which form to use, and apply the relevant test to work out what is deemed to be fair

An article from a periodical publication

The Act deems it fair to use an article from a periodical publication (such as a newspaper, magazine or journal)

or more than one article, if each article is for the same research or course of study

Copying more than the amounts deemed fair

If you want to copy more than the deemed amounts, you must consider all the circumstances to work out if it

is fair, considering the factors listed in the Act (see above) If you want to use material that is not textual (for example, a drawing or photograph), as there are no deemed amounts, you will also need to consider if the use

is fair

Criticism or review

Copyright material may be used without permission for the purposes of criticism or review, provided the use is

“fair” Criticism or review involves passing some form of judgment There is also a requirement that the person using the material provides a “sufficient acknowledgement” This exception would allow, for example, a person writing a book review to include an image of the book cover and extracts in the review, provided the material

is properly attributed to the author of the respective works

Parody or satire

Copyright material may be used without permission if it is for the purposes of parody or satire The terms

“parody” and “satire” are not defined in the Copyright Act and have not yet been considered by Australian courts, but it is likely that a court would look at dictionary definitions of the words to decide what they mean

in the context of the Act

The Macquarie Dictionary includes the following definitions:

Parody: 1 a humorous or satirical imitation of a serious piece of literature or writing 2 the kind of

literary composition represented by such imitations 3 a burlesque imitation of a musical composition 4

a poor imitation; a travesty

Burlesque: involving ludicrous or debasing treatment of a serious subject.

Satire: 1 the use of irony, sarcasm, ridicule, etc in exposing, denouncing, or deriding vice, folly etc 2 a

literary composition, in verse or prose, in which vices, abuses, follies etc are held up to scorn, derision, or ridicule 3 the species of literature constituted by such composition

A parody is an imitation of a work that may include parts of the original In some cases, a parody may not be effective unless parts of the original are included It seems that the purpose of a true parody is to make some comment on the imitated work or on its author A parody does not necessarily need to be humorous The purpose of satire is to draw attention to characteristics or actions, such as vice or folly, by using certain forms

of expression, such as irony, sarcasm and ridicule

Reporting the news

Copyright material may be used without permission for reporting the news, provided the use is “fair” To rely

on this exception, the primary purpose must be to report the news, not simply to entertain The courts have said that “news” is not restricted to current events

There must also be a “sufficient acknowledgement” accompanying a work that appears in a newspaper or magazine article, identifying the material by its title or other description, and giving the name of the work’s author However, there is no requirement to provide a “sufficient acknowledgement” for news broadcasts

Access by persons with a disability

The new amendments to the Copyright Act introduce a new fair dealing exception that allows for the use of copyright material for the purpose of providing access to one or more persons with a disability that causes the person(s) difficulty reading, viewing, hearing or comprehending copyright material

3.8 Frequently asked questions

What is fair use and how is it different to fair dealing?

Fair use is an exception that originated in the United States and has been adopted in a number of jurisdictions

It is an open-ended exception and applies more broadly than fair dealing, which only applies to specified purposes The Australian Law Reform Commission and Productivity Commission have both recommended

that Australia adopt fair use For further guidance on fair use, see our information sheets Fair Use & the ALRC

Inquiry and Fair Use and the Productivity Commission.

Can students copy material from the internet?

Internet pages often involve a collection of materials that may be separately protected by copyright Text will

be protected as a “literary work”, images will be protected as “artistic works”, and videos will be protected

as “cinematograph films” Students should first check the relevant website for terms and conditions setting out how the material may be used Students may also be able to rely on the fair dealing exceptions to copy material on websites up to certain limits See Part 3.7

Our school wants to record lessons and post them to the learning management system or shared drive for distance students to view Can we do this?

The Copyright Act enables teachers and lecturers to perform and communicate copyright material in class, and

to copy and make adaptations of works by hand, without infringing copyright However, these exceptions do not extend to recording the performance or hand-written copies or adaptations, which are reproductions not covered by the exceptions

Having said this, your educational institution’s statutory licence will cover the copying and communication of

the reproduction of commercial sound recordings (see Chapter 4) Where these licences do not apply, the special case exception might allow for the recording of the performance to be made and posted to the learning management system or shared drive See Part 3.5.

A music student with a print disability requires a score in large print for her music class Can I make a copy?

There is an exception that allows for educational institutions to assist people with a disability that causes them difficulty reading, viewing, hearing or comprehending copyright material If a teacher is satisfied that the material cannot be obtained in the required format within a reasonable time at an ordinary commercial price, they can make a copy for the student in the required format For more information, see Part 3.4