14.27 Many vital educational resources might not be created without the protection of copyright laws. The incentive to write or publish a textbook, for example, might be undermined if the authors and publishers were not paid for the use of their books by students and educators. The public interest in education could be undermined by ‘weak’ copyright laws that undermine the incentive to create. Fair use accounts for this by requiring consideration of harm to rights holders’ markets.
14.28 Many publishers of Australian educational material expressed concern about potential harm to their markets, should new exceptions be introduced or the statutory licences for education be repealed. Oxford University Press, for example, wrote of authors and publishers ‘who have invested their expertise, research, time, effort and money in producing educational materials specifically designed to support learners of all ages and bespoke Australian curricula’.
14.29 Expanding exceptions for educational institutions will discourage investment in and the development of educational content, including investment in ‘new resources and platforms’ which are important for the digital economy. John Wiley and Sons submitted that ‘quality education materials, especially those tailored for a specific Australian curriculum, take significant time, resources and skill to develop and the efforts and rights of the creators and copyright holders should be recognised’. This publisher also stated:
the primary market of many texts and resources are for their express use in schools and educational institutions, so to allow any extended right of free use (particularly in the digital arena) would significantly reduce the ability of, and incentives for, publishers to produce the kinds of innovative and educational materials which are relied on by teachers, lecturers and educators.
14.30 Another publisher of educational material for Australian schools submitted that it relies heavily on funds it receives through the statutory licence:
Remove that compensation and you remove that capacity to create. Remove new creative product and publishers would have to dilute the quality of resource available to educators. A diluted resource pool means a diluted quality of education.
14.31 The International Association of Scientific, Technical and Medical Publishers stated that ‘the public interest of education is best served by encouraging the creation of new publications and information services targeted at this sector’. Offering journal subscriptions and other information services to non-commercial communities was said to be ‘the very essence of “normal exploitation” which must be left free of exceptions that prejudice the legitimate interests of rights holders unreasonably’.
14.32 It was submitted that course pack licensing schemes are ‘ensuring a healthy, vibrant and viable market for creators’ and producing material specifically for educational institutions. This income stream was said to be ‘particularly important for individual and small creators’.
There is likely to be little argument that for illustration purposes, teachers may make copies of works for use on teaching tools, such as interactive whiteboards. … However, permitting teachers to make copies of copyright works (small or substantial portions thereof) and distribute them to students appears to strongly conflict with normal exploitation of works.
14.33 Stakeholders stressed that new exceptions would be particularly damaging in an environment in which creators and rights holders are already struggling to fight piracy and maintain successful business models in a new digital age, with new digital formats and distribution channels.
14.34 For example, music publishing was said to have been ‘severely affected by the distribution of unauthorised copies on the internet’, and any ‘further undercutting of the financial viability of these specialist publishers by the broadening of statutory licences or unremunerated exceptions may see the unintended consequence of closing this market down entirely’.
14.35 Another publisher warned that allowing more unpaid uses for education ‘would result in drying up of income streams for writers’. A reasonably secure source of income was considered particularly important for creators in an industry ‘where sales and therefore royalties tend to decline after a year or so’. Secondary licence fees can ‘give much-needed stability to a creator’.
14.36 The Australian Publishers Association (APA) submitted that:
except in relation to the existing free de minimus uses such as copying material onto whiteboards and so on (section 200) or uses that fall within section 200AB, there are no compelling grounds on which educational sectors should be entitled to use copyright material without payment.
14.37 The APA also considered that it is only fair that publishers share in the value that educational institutions have in accessing copyright material, rather than have to subsidise educational institutions. Different uses have different value, but the APA submitted that this can be considered when determining the equitable remuneration the education sector should pay—it should not simply be made free.
14.38 In the ALRC’s view, the importance of education does not mean creators should subsidise education in Australia. Although this Inquiry is about exceptions to copyright, the ALRC appreciates the need for copyright laws to help ensure authors, publishers, film makers and other creators have an incentive to create.
14.39 However, the fairness exceptions recommended in this Report explicitly require that harm to rights holders’ interests be considered when determining whether a particular use—including a use for education—is fair. The stronger the arguments are that unpaid uses will harm creators and publishers, the stronger the case will be that a particular educational use is not fair.
Availability of a licence
14.40 As discussed in Chapter 5, if a licence can be obtained for a particular use of copyright material, then the unlicensed use of that material will often not be fair. The availability of a licence is an important consideration in determining whether a use is fair, and will weigh against a finding of fair use.
14.41 However, the availability of a licence does not settle the question of fairness. Market harm needs to be weighed along with the other fairness factors. Some damage to a rights holder’s market may be justified, for a use that is transformative or has an important social value, particularly if the damage is minor or remote.
14.42 Market harm does not mean any loss of licence fees. This may be particularly important to recognise where there is a broad statutory licence in place. Those who now rely on the statutory licences for education have strongly objected to having to account and pay for uses that are not traditionally licensed, such as so-called technical copies and certain material freely available on the internet. When considering market harm under a fair use or fair dealing exception, the relevant market should be ‘traditional, reasonable, or likely to be developed markets’. Statutory licences will not always be a good guide to this market, because they provide broad protection from infringement, and therefore licence both inside and outside traditional markets. Rather than consider statutory licences under the fourth fair use factor, courts might instead consider whether the particular use is being licensed voluntarily, either directly or collectively, in Australia and overseas.
14.43 The fair use exception may act as an incentive for rights holders and collecting societies to offer reasonable and convenient licences for the use of their material. Where such licences are not offered, it will be easier to establish that an unpaid use did not harm a rights holder’s market.
For example, Penguin Australia, Submission 669; Allen & Unwin, Submission 582; International Association of Scientific Technical and Medical Publishers, Submission 560; RIC Publications Pty Ltd, Submission 456; OfficeLink Learning, Submission 379.
Oxford University Press Australia, Submission 333.
Australian Publishers Association, Submission 225.
John Wiley & Sons, Submission 239.
RIC Publications Pty Ltd, Submission 456.
International Association of Scientific Technical and Medical Publishers, Submission 560.
ALPSP, Submission 562.
For example, Allen & Unwin, Submission 582.
AMPAL, Submission 189.
Spinifex Press, Submission 125.
Walker Books Australia, Submission 144.
Australian Publishers Association, Submission 225.
See Ch 2, framing principles 1 and 2.
See Ch 5.