14.1 Copyright law must continue to ensure writers, publishers, film makers, and other rights holders have an incentive to create the educational resources that students and educational institutions rely on.

14.2 However, the existing exceptions for educational use of copyright material are due for reform. New exceptions are needed to ensure educational institutions can take full advantage of the wealth of material and new technologies and services now available in a digital age.

14.3 Education should not be hampered or stifled by overly prescriptive and confined exceptions. Licences should not be required for fair uses of copyright material that do not harm rights holders and do not reduce the incentive to produce educational material.

14.4 The ALRC has concluded that fair use is a suitable exception to apply when determining whether an educational use infringes copyright. Further, the fact that a particular use is for education should favour a finding of fair use. ‘Education’ should be included as an illustrative purpose in the fair use exception.

14.5 If fair use is not enacted, then ‘education’ should be included in the list of prescribed purposes in the new fair dealing exception recommended in Chapter 6. Applying this exception would also require consideration of what is fair, having regard to the same fairness factors in the fair use exception.

14.6 The fair use and new fair dealing exceptions are not unqualified or blanket exceptions for education. Educational uses are not even presumptively fair; other factors must be considered, including any potential harm to the rights holder’s market. A non-transformative use that merely repackages and substitutes for a copyright work will not be fair use, under the exceptions recommended in this Report.

14.7 This chapter is about unremunerated exceptions for education. Remunerated exceptions for education—the statutory licences—are discussed in Chapter 8.