13.62 If Australia does not adopt a fair use exception, then the Copyright Act should be amended to include a new ‘fair dealing for education’ exception. Like fair use, the exception should 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.
13.63 Some have argued that the existing exceptions for fair dealing for research or study should extend to copying by educational institutions. Sections 40 and 103C of the Act provide for exceptions for fair dealing for the purpose of research or study. These exceptions do not extend to uses by educational institutions, but only to private research and study by individuals. In Haines v Copyright Agency Ltd, the Full Federal Court drew a distinction ‘between an institution making copies for teaching purposes and the activities of individuals concerned with research or study’. In De Garis v Neville Jeffress Pidler Pty Ltd, it was held that the exception only applies if the person who does the copying is the person who does the research or study. This distinction was criticised in some submissions. For example:
The distinction drawn in De Garis between acts by the researcher and the acts of a facilitator was based on the Court’s reliance on English cases on the narrower notion of ‘private study’. It is not required by the Act, and is unnecessarily restrictive. It is entirely artificial to privilege acts of reproduction or copying that can be done by a researcher themselves over acts that require the involvement of a third party, such as an intermediary to assist with the copying or a publisher to disseminate the research output. It is also a distinction that has not found favour in the Supreme Court of Canada.
13.64 In 2012, the Supreme Court of Canada considered ‘whether photocopies made by teachers to distribute to students as part of class instruction can qualify as fair dealing’ under Canadian copyright legislation—and concluded that they could. The Court stated that photocopies made by a teacher and given to students are ‘an essential element in the research and private study undertaken by those students’. The Court held that teachers
have no ulterior motive when providing copies to students. Nor can teachers be characterised as having the completely separate purpose of ‘instruction’; they are there to facilitate the students’ research and private study … The teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study. Instruction and research/private study are, in the school context, tautological.
13.65 Since this case, Canada has introduced an exception for fair dealing for the purpose of education.
13.66 The extension of the fair dealing for research and study exception to educational institutions was arguably countenanced by the Franki Committee in 1976. The exception then applied to ‘research or private study’. The Committee recommended the word ‘private’ be deleted. Australian copyright scholars submitted that this:
strongly suggests that it was thought that the amended defence would allow for teachers to copy material for the benefit of their students’ research or study. However, the Committee separately recommended a statutory licensing scheme for the multiple copying of works by educational institutions and in doing so failed to explain the relationship between this scheme and the amended fair dealing defence.
13.67 One of the key benefits of the fair use exception is that it is not confined to dealings that fall into one of the prescribed categories of purpose. A use for prescribed purposes may more often be fair than other types of use, but these other uses should not be presumed unfair. It seems preferable at least to consider whether any given use is fair, rather than automatically prohibit the use. Copyright law that is conducive to new and innovative services and technologies should at least allow for the question of fairness to be raised.
 See also, Ch 5.
 Copyright Act 1968 (Cth) ss 40, 103C, 248(1)(aa). See also Ch 7, ‘Fair Dealing’.
 See Haines v Copyright Agency Ltd (1982) 64 FLR 185, 191.
 (1990) 37 FCR 99, 105−6.
 R Burrell and others, Submission 278.
 Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright) (2012) 37 SCC (Canada), .
 Ibid, .
 Ibid, .
 ‘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.
 R Burrell and others, Submission 278.