14.81 If Australia does not adopt a fair use exception, then the Copyright Act should be amended to include a new fair dealing exception with a prescribed purpose for education.
14.82 Like fair use, the exception would be flexible and able to adapt to new technologies and teaching practices. Like fair use, it would only cover uses which are fair, having regard to the fairness factors. This is a second best option, but it is more likely to enable educational institutions to make use of new digital technologies and opportunities than the existing or amended specific exceptions.
14.83 Some have argued that the existing exceptions for fair dealing for research or study should be interpreted to extend to copying by educational institutions. As discussed in Chapter 8, these exceptions have been interpreted not to extend to uses by educational institutions, but only to private research and study by individuals. The Supreme Court of Canada has taken a broader interpretation to Canada’s fair dealing for research provision, finding that the ‘teacher/copier … shares a symbiotic purpose with the student/user who is engaging in research or private study’.
14.84 This problem does not arise with fair use, in which the listed purposes are illustrative, and do not confine the exception. It is preferable to consider whether any given use is fair, rather than automatically prohibit the use. In any event, Canada has since introduced an exception for fair dealing for the purpose of education, and the ALRC recommends the introduction of a fair dealing for education exception.
See Ch 6.
Copyright Act 1968 (Cth) ss 40, 103C, 248(1)(aa).
See Haines v Copyright Agency Ltd (1982) 64 FLR 185, 191; De Garis v Neville Jeffress Pidler Pty Ltd (1990) 37 FCR 99, 105−6.
Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright) (2012) 37 SCC (Canada), .
‘Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright’: Copyright Modernization Act, C-11 2012 (Canada), s 29.