14.49 Some have submitted that schools and universities should be able to use, without payment, some material that is otherwise ‘free’—uses such as copying freely available web pages and content broadcast on free-to-air television. In the ALRCs view, whether such uses infringe copyright should be determined by applying a fairness exception. The difficulty of distinguishing between freely available material that should be paid for, and freely available material that need not, highlights the benefits of flexible principles-based copyright exceptions.
14.50 The Australian education sector has favoured the introduction of a new exception allowing educational institutions to copy and communicate free and publicly available material on the internet for non-commercial educational purposes.
14.51 This option was put to the ALRC in support of calls to repeal the statutory licences for educational uses. Statutory licences may provide a mechanism for such uses to be monitored and monetised. In the ALRC’s view, it may be more straightforward to consider whether these uses should be permitted under an unremunerated exception.
14.52 CAG Schools submitted that paying for content that is freely available online undermined the Government’s digital economy goals, including ‘the success of the Government’s investments in digital education’. It ‘potentially adds millions of dollars to education budgets each year’ and, furthermore, ‘Australia is the only place in the world where schools are legislatively required to pay for printing a page from a website’.
14.53 Examples of uses that CAG Schools said were treated as remunerable under the statutory licence in the 2011 survey of electronic copying in schools included:
reproducing thumbnail images of books on a school intranet as a way of showing teachers and students what books are in the school library;
saving and displaying a Google map on an interactive whiteboard in the classroom;
telling a student to print, copy or save a page from Facebook;
printing a page of a Government Department’s contact information from the White Pages;
printing a freely available webpage such as the home page from the McDonald’s website; and
printing a freely available webpage such as an information page from the University of Newcastle’s website.
14.54 Universities Australia submitted that freely available internet material, including blogs and wikis, is copied in homes and businesses throughout Australia, and in universities in other countries, and ‘no one is seeking to be paid for it’.
We are particularly concerned that at the very time that a wide range of high quality audio-visual resources are being made freely available—such as content on YouTube EDU and the Open University on iTunesU—Screenrights is proposing to seek extension of the Part VA licence that may result in content of this kind becoming remunerable in Australia. 
14.55 Universities Australia submitted that no one but the education sector is paying to time shift free-to-air broadcasts, and the payments extracted from the education sector ‘cannot in any way be said to be necessary to provide an incentive for the continued creation of the content’.
14.56 Universities Australia submitted that often the fees collected do not even benefit the publishers, authors and other creators of that material. Instead, ‘the millions of dollars collected each year from educational institutions for copying of freely available internet content and orphan works is likely to be paid to Copyright Agency members who have no connection to the works that were copied’. These members were said to be benefiting at the expense of publicly funded educational institutions, and the ‘loss of this windfall income could not in way be said to cause them unreasonable prejudice’.
14.57 Universities Australia wrote of a ‘global move towards making high quality educational content freely available’ and submitted that ‘open access publishing has dramatically changed the scholarly communications landscape’.
14.58 Many of the claims of the education sector were strongly opposed by publishers and collecting societies. For example, Copyright Agency said that uses such as reading a poem out loud to distance education students and reciting a poem to a virtual class using Skype or a Google hangout are allowed by ss 28 or 200AB.
14.60 The collecting society Screenrights submitted that the call by the education sector wrongly assumes that ‘free’ material on the internet is not valued by the copyright owner.
Copyright owners like Screenrights’ professional filmmaker members make material available online for very clear commercial reasons. They may choose to make it available for a fee, such as with commercial video on demand services or they may choose to license a website to stream the content for a period of time without charging the consumer directly (such as ABC iView). In the latter case, the consumer still pays for the content, either by watching associated advertising, or through brand attachment to the website and there are clear cross promotional benefits to other platforms where the content is available for a fee, such as via DVD or Blu-ray discs.
14.61 Material ‘freely’ available on the internet, Screenrights submitted, is very much like material broadcast ‘freely’ on television, and copyright owners should be compensated for the use of either type of material. Screenrights said that there may be ‘debate about the value of the content and the price of the compensation, but the principle is the same’.
14.62 In the ALRC’s view, it is important to distinguish between different types of material which may be accessed without paying a fee. Some of this content may be provided without any expectation that rights holders will collect fees from educational institutions and governments for the use of the material. At other times, rights holders may only wish to provide their content under limited circumstances.
14.63 Of course, a film shown with advertisements on free-to-air television is not really ‘free’. Advertising is also not the only way of selling content without explicitly charging for its use: giving a customer access to a free book, for example, so that the customer enters a content ‘ecosystem’ in which he or she is more likely to buy other books, or films, television shows and other material, is not necessarily the same as giving the book away for free.
14.64 The fair use and new fair dealing exceptions recommended in this Report may capture some uses of this content by educational institutions. As discussed below, these exceptions require consideration of the likely harm a particular unpaid use might have on a market. The exceptions are flexible and require certain principles to be considered, and are therefore better equipped to distinguish between types of ‘freely available’ material than more prescriptive exceptions.
D Browne, ‘Educational Use and the Internet—Does Australian Copyright Law Work in the Web Environment?’ (2009) 6(2) SCRIPT-ed 450, 461.
Copyright Advisory Group—Schools, Submission 231.
Copyright Advisory Group—Schools, Submission 707.
Universities Australia, Submission 754.
Universities Australia, Submission 246. See also Society of University Lawyers, Submission 158.
Universities Australia, Submission 246.
Universities Australia, Submission 754.
Copyright Agency, Submission 866.
Screenrights, Submission 215.