Educational institutions

182. There are multiple free-use exceptions and statutory licensing schemes that apply to the use of copyright material by students and educational institutions. These exceptions and how they interact are complex. This section provides a short overview and highlights some options for reform. The ALRC seeks comment on these options and welcomes suggestions for other reforms.

The statutory licensing schemes

183. There are two statutory licensing schemes in the Copyright Act for the use of copyright material by educational institutions: one relates to the copying and communication of broadcasts (pt VA of the Act); the other concerns the reproduction and communication of works and periodical articles (pt VB of the Act).^[211]

184. Under these schemes, educational institutions pay fees or royalties—‘equitable remuneration’—to collecting societies for certain uses of copyright material. Collecting societies distribute the royalties to their members—authors, film-makers and other rights holders.

185. Despite early concerns that a statutory licensing scheme for educational institutions ‘might seem to favour the interests of education as against the interests of copyright owners’,^[212] criticisms of these schemes are now more often made by educational institutions.

186. One criticism concerns the range of material for which educational institutions must pay royalties. Fees are now collected from educational institutions for uses of otherwise free and publicly available material on the internet. The Australian education sector has recommended that this material should be removed from the scope of the licensing schemes.^[213] The sector has recommended 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.^[214]

Fair dealing and the statutory licensing schemes

187. The relationship between the statutory licensing schemes and the fair dealing exception for the purpose of research or study is unclear.^[215] That they may overlap was noted by the Federal Court in 1982—although the Court said it is important to the proper working of the sections that ‘a distinction be recognized between an institution making copies for teaching purposes and the activities of individuals concerned with research or study’.^[216]

188. 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 qualify.^[217] 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.’^[218] 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.^[219]

Flexible dealing in s 200AB and other exceptions

189. There is also a broad exception in s 200AB of the Copyright Act for bodies administering an educational institution. The exception covers a use that is for the purpose of giving educational instruction and not for a profit.^[220] The use must amount to a special case, must not conflict with a normal exploitation of the material and must not unreasonably prejudice the legitimate interests of the owner of the copyright.^[221]

190. The Berne Convention’s ‘three-step test’ has essentially been incorporated in s 200AB. Those wishing to take advantage of the provision, perhaps including small schools, must therefore apply a complex test of uncertain scope.

191. Section 200AB will not apply if there is a statutory or voluntary licence in place, which may mean the exception will rarely apply to literary, musical, dramatic and artistic works, because these works are subject to the broad ‘catch-all’ statutory licence in pt VB.^[222]

192. There are other free-use exceptions in the Copyright Act that concern educational institutions, including exceptions for: performing material, including playing music and films in class (s 28); collections of short extracts of material (s 44); and copying insubstantial portions (ss 135ZG, 135ZMB).^[223]

Options for reform

193. The ALRC seeks submissions on the operation of the statutory licensing schemes and the other exceptions for educational institutions. In particular, the ALRC welcomes comments on how the Copyright Act might be amended so that these exceptions operate more effectively—that is, achieve desirable policy outcomes—in the digital environment.

194. For example, are the statutory licensing schemes too complex—a criticism often levelled at the Copyright Act—and, if so, how might the schemes be simplified? Also, can the multiple, complex free-use exceptions concerning educational institutions be replaced with one, more simple exception for uses by educational institutions?

195. The ALRC is also interested in whether any uses of copyright material by educational institutions now covered by a statutory licence should instead be covered by a free-use exception—either an existing exception, such as fair dealing for research or study, or any new or proposed exception, such as a broad and flexible exception based on ‘fair’ or ‘reasonable’ use.^[224] In the digital environment, it may be particularly important to clarify when schools and other educational institutions should pay royalties for uses of copyright material on the internet.

196. Alternatively, the Copyright Act might need to be amended to clarify that certain uses by educational institutions should be remunerated, and do not amount to fair dealing.