Fair use and education

14.21 The ALRC recommends the introduction of fair use.[21] That some educational uses may be fair is clear from the US fair use provision. The US fair use exception twice refers explicitly to education. The preamble includes, as an illustrative purpose, ‘teaching (including multiple copies for classroom use), scholarship, or research’. Furthermore, the first of the four fairness factors in the US provision is the ‘purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes’.[22] Some US copyright academics submitted:

We have seen that in the United States, the importance of education as a purpose deserving of recognition in fair use analysis is well established, and that this fact has enabled a wide range of time-honored educational practices to flourish, and facilitated others to emerge. That said, it is important to emphasize that educational fair use has not eclipsed or displaced the sale and licensing of educational materials in the United States. Textbook publishing, in both hard-copy and digital formats, continues to thrive.

And schools at all levels continue to license other content for class use and teaching support, as well as to purchase monographs and periodicals for digital libraries. This is true, in part, because even decisions like the recent Cambridge University Press v Becker allow a relatively narrow scope for unlicensed illustrative quotation in teaching materials; in other words, educational fair use in the United States provides some room for innovation in teaching but none for wholesale appropriation of copyrighted content.[23]

14.22 The United Kingdom Government is introducing a ‘fair dealing provision for the purpose of instruction, enabling teachers to make reasonable use of copyright materials without infringing copyright, as long as such use is minimal, non-commercial, and fair to copyright owners’.[24] This is more confined than fair use—non-commerciality, for example, is a condition, rather than a consideration. However, in the ALRC’s view, the proposed UK provision is likely to permit similar unlicensed uses that would be permitted under fair use. Importantly, neither exception is overly prescriptive, and both require a consideration of fairness.

14.23 The ALRC recommends that ‘education’ be one of the illustrative purposes listed in the fair use provision. Including an illustrative purpose for education in Australia’s fair use exception will signal that an educational use is more likely to be fair than a non-educational use. In other words, an educational purpose will weigh in favour of fair use.

14.24 However, the fairness factors must be considered. The fact that a particular use is educational does not necessarily mean the use is fair. In fact, it does not even create a presumption that the use is fair. In particular, the unlicensed use of material specifically produced for educational purposes would usually harm the market for that material. Such unlicensed uses, even though for education, will often not be fair use.

14.25 Stakeholders who supported fair use generally said educational use should be considered under the exception, and education should be an illustrative purpose.[25]

14.26 However, many stakeholders opposed the introduction of fair use, including the proposal to consider educational uses under a fair use exception. The most common argument against fair use was that the exception would harm rights holders’ markets, and particularly markets for books and other material specifically made for education.