Technical copying

13.17 One example of a fair use for education may be some of the so-called ‘technical copying’ that is done when using new digital technologies in the classroom.^[14] This was a particular concern expressed in submissions from the education sector. The Copyright Advisory Group—Schools (the Schools), for example, submitted that

The simple act of using more modern teaching methods potentially adds up to 4 remunerable activities under the statutory licence in addition to the potential costs incurred by more traditional ‘print and distribute’ teaching methods.^[15]

13.18 The education sector appears to consider that it should not have to pay for some types of ‘technical’ copying and communication of copyright material.

The requirements of the statutory licence to record in a survey (and potentially pay for) every technological copy and communication involved in teaching simply do not reflect the realities of modern education in a digital age.^[16]

13.19 Universities Australia submitted that the scope of the express exception for caching in s 200AAA of the Copyright Act is too narrow, and may inhibit the use of cloud technologies and services:

As the digital activities of universities and other educational institutions increasingly migrate from systems ‘operated by or on behalf of’ the university to cloud based systems, this education-specific exception may well come under challenge.^[17]

13.20 Such uses may also be characterised as ‘non-consumptive’ uses, a type of use discussed in Chapter 8. As noted in that chapter, some consider the strict accounting of copying and communicating to be inconsistent with the broader purpose of copyright law, which should instead be more concerned with the ultimate uses of the material. Chris Reed has written that, ‘in cyberspace, and to a large extent in the physical world as well, the control of copying has ceased to be an effective proxy for control of use’:

a third party may copy information without making any use of the creation which is legally significant, or alternatively may use the creation for economic gain without copying it.^[18]

13.21 In Chapter 8, the ALRC concludes that some non-consumptive uses of copyright material are likely to be fair, and that ‘non-consumptive use’ be an illustrative purpose in the fair use exception.