Like almost all nations, education is crucial to the future economic and social well-being of Australia. These are exciting times for education, but the benefits of the digital era will not be fully realised in our classrooms unless greater flexibility is introduced into our copyright laws. The rules around copyright were designed in the age of the photocopier; these are not working in the age of the iPad and the 3D printer, and are holding back innovation in schools.

The current system isn’t working

Copyright reform is a significant issue for Australian schools, as Australia’s outdated copyright laws currently stand in the way of teachers using the most modern teaching methods in the interests of Australian students. For example:

• The copyright rules are different for printed materials and digital teaching methods: current regulations stop teachers from using copyrighted material in online exams because the law says that exceptions to copyright for education apply to hard copy exams only.  Similarly, teachers can write a quote from a book on a blackboard with chalk for free, but a licence fee applies when teachers write the same quote on an interactive whiteboard.
• The educational statutory licences penalise Australian schools for using digital technologies, as giving students access to content using digital technology can be up to four times more expensive than hard copy technologies. For example, printing a hard copy to hand out in class is one remunerable activity; providing the same information in digital form can involve as many as four remunerable activities.
• Modern teaching and learning methods such as MOOCs are transforming the way that education is delivered, but Australian copyright laws limit the ways that schools can take part in this. The Copyright Act does not permit these types of activities. By definition, MOOCs are open; i.e. MOOC courses are not confined to students enrolled at a particular educational institution. Neither the statutory licence, nor the research and study fair dealing exception, usually apply when content is shared with people outside the school.  
• Schools pay millions of dollars of public funds to use freely available internet materials in the classroom. For the most part, the authors of these materials never wished or expected to be paid for these materials (like head lice fact sheets), or works where no copyright owner can be found.
• Government policy and community expectations require schools to take an increasing role in STEM education, industry collaboration, and equipping students with the digital skills they need to be successful in the workforce of the future. Australia’s copyright laws are hampering this. None of the existing copyright exceptions of statutory licences allows schools to use small amounts of copyrighted material when engaging in collaborative projects with the broader community, business, and industry.
• Critically, the absence of appropriate copyright exceptions makes it difficult or impossible for teachers to assist students with disabilities, such as making format-appropriate copies of resources for vision- or hearing-impaired students.  

The reform Australia needs: fair use

Replacing Australia’s out of date educational exceptions with a flexible fair use exception that can adapt to changes in technology and teaching practices would fix the problems listed above. It would bring Australia in line with countries such as Israel, South Korea, Singapore, and the United States. These countries have flexible copyright laws that facilitate, rather than hinder, the innovative teaching practices that prepare students for the digital economy. And it would ensure that the millions of dollars of public funds that schools currently pay every year to use freely available internet materials and orphan works would instead be used to educate students.

The issue of whether Australia should adopt a flexible copyright exception like fair use has been extensively examined in Australia, and a fair use style copyright exception has now been recommended by seven independent review committees over almost 20 years of in-depth consideration.  

The time has come for this reform to be implemented. Fair use would enable sensible public interest uses, while protecting the interests of copyright owners. It would allow educational uses in schools—irrespective of the content used or the technological means of delivery— but only where such uses would not harm copyright owners’ markets.

The existing educational copying regime was designed in the age of classroom-based “chalk and talk” teaching. It is entirely unsuited to today’s world of flipped classrooms, digital learning, and collaboration. Fair use is urgently needed to bring the Australian educational copying regime into the digital age.

For additional information on fair use see the Smartcopying website:

• Answering teachers’ common questions about fair use;
• Yes, Australian schools do pay to use free online content; and
• Mythbusting fair use.

Productivity Commission recommendations

The issue of whether Australia should adopt a fair use exception was most recently referred to the Productivity Commission’s review of Australia’s intellectual property system.  The education sector made multiple submissions to the Productivity Commission’s consultations.  Key aspects of these submissions were:

• Explaining why the recommendation of fair use by previous independent reviews should be implemented as part of Australia’s innovation agenda, highlighting the importance of STEM subjects and equipping students with the skills needed for the workplaces of the future;
• Explaining that the existing educational copyright system is not suitable for the digital environment, and how streamlined statutory licences and a fair use exception would allow Australian schools to take advantage of digital technologies and international best practice teaching methods, as well as allowing student engagement in ways contemplated by the Australian curriculum;
• Highlighting the poor governance arrangements for Australian collecting societies, and the need for greater transparency and oversight of the administration of the educational statutory licences;
• Reminding of the need for a strong Open Educational Resources (OER) policy to support Australia’s innovation policy;
• Highlighting the need for a copyright safe harbour to clarify the legal responsibilities of schools when providing internet access to students and staff; and
• Reminding policymakers of the ongoing need for copyright reform to address challenges of educating students with disabilities due to the absence of TPM exceptions, as well as general concerns about contractual and technological methods being used to limit or exclude the capacity of schools to rely on copyright exceptions.

The Productivity Commission’s final report into Intellectual Property Arrangements was released by the Commonwealth Government in December 2016, and concluded that “Australia’s copyright arrangements lack balance and have been slow to adapt to technological change, imposing costs on the broader community.” It suggests a suite of reforms to maximise the welfare of all Australians.

The Commission recommended reform in all of the areas raised by education sector, including:

• The introduction of a fair use exception;
• The need for expanded copyright safe harbours to include educational institutions;
• The need for improved governance arrangements for copyright collecting societies;
• Provisions ensuring that contractual and technological means cannot be used to override educational copyright exceptions;
• The need for TPM exceptions to enable educational uses, including assisting students with disabilities; and
• Supporting a broader policy on OER.

The Productivity Commission’s recommendation of fair use was supported by the Commonwealth Government-commissioned Ernst & Young cost benefit analysis of the ALRC’s proposed copyright reforms. The report found that an exception that permitted schools to make “fair” uses of content without payment would have a net positive impact on the economy and society. The main benefits would be more effective use of public funds (as schools would no longer be required to pay to use freely available internet content or orphan works, and could use content in other ways that did not harm the rights holders), and greater efficiency in the delivery of education.

Ernst & Young considered—but ultimately rejected—the claims made by rights holder groups that fair use is inherently more uncertain than the existing educational copyright system, and that it would cause harm to educational publishers and reduce the incentives for the creation of educational content.

The Commonwealth Government has called for further submissions on the Productivity Commission’s final recommendations. Submissions are due on 14 February 2017.  The Government has stated in announcing the consultation that it encourages submissions on new issues raised by the Commission, and additional information (rather than re-visiting issues raised in previous submissions).  

The Australian education sector is in the process of preparing a submission. Be on the lookout for another blog post once the consultation has concluded.

The flowchart is licensed under a CC BY 4.0 International License, creator: Australian Copyright Unit. 

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The Australian Law Reform Commission has just published its report on Copyright and the Digital Economy. At the centerpiece of this report we find the recommendation to replace the existing system of purpose-based exceptions with a flexible fair use style exception. The proposal, on which the 1709 Blog has a very useful summary, combines a fair use clause with a number of illustrative purposes that aims at providing legal certainty for specific types of uses:

Under the proposed framework, determining whether a use is ‘fair’ requires the balancing of the same four factors as those that underpin the US fair use doctrine, ie:

• the purpose and character of the use;
• the nature of the copyright material;
• the amount and substantiality of the part used; and
• the effect of the use upon the potential market for, or value of, the copyright material.

A more extensive (non-exhaustive) list of illustrative purposes than appears in the US statute is also recommended for inclusion. It covers:

• research or study;
• criticism or review;
• parody or satire;
• reporting news;
• professional advice;
• quotation;
• non-commercial private use;
• incidental or technical use;
• library or archive use;
• education; and
• access for people with disability.

In the context of the ongoing EU consultation it is especially interesting to see a set of recommendations that try to combine the advantages of a fair use approach (flexibility and adaptability to new technological developments) with the advantages of an approach that relies on exceptions for certain clearly defined types of use (legal certainty for users that fall into these categories).

A number of the already published responses to the EU copyright consultation are suggesting a similar approach for Europe. These include the response by Copyright4Creativity (to which Communia has contributed) but also the responses by Europeana and by a number of Dutch cultural heritage institutions.

While we are waiting for the next steps of the European copyright reform process, the report by the the Australian Law Reform Commission, which draws on the outcomes of a similar public consultation, shows that a fair use approach certainly has its merits.

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