Australia’s current copyright system is designed predominantly for an outdated learning model where all teaching happens inside the classroom. Our copyright laws were mostly written in a time when teachers stood in front of a class with a piece of chalk, writing on a blackboard. They simply do not reflect modern, online learning practices.

In recent years, the Australian Law Reform Commission (ALRC) and Productivity Commission (PC) have made a number of recommendations aimed at modernising the Copyright Act. One of these recommendations was that Australia should adopt a flexible fair use exception to enable the appropriate use of digital technologies in Australian educational institutions.

Unlike some other countries, we do not have a flexible, open ended exception such as fair use. As you learnt in weeks three, four and five, we have a complex system of statutory licences and limited educational exceptions. This means that Australian educational institutions are prevented from using copyright materials in the same way as educational institutions in other countries that have a fair use exception (eg USA, Israel and Korea) or fair dealing for education exception (eg Canada, Singapore and the United Kingdom). The current Australian system also means that educational institutions pay millions of dollars a year to use content, such as free internet material, which teachers would be able to use for free in many other countries.

The Government is currently considering how to amend the Copyright Act to better support Australians to access copyright content in an increasingly digital environment, while maintaining incentives and protections for content creators.[1]

Given this current reform environment, it is helpful to consider the copyright law in some other countries, namely Canada, Singapore and the United States, to better understand and evaluate what the next step in Australian copyright law should be.

A common aspect of copyright law in each of these countries that differs with Australia is that each has an exception to copyright specifically applicable to educational institutions. In Canada and Singapore, this is in the form of fair dealing for education, while in the US it is through a fair use provision.

Canada

The Canadian Copyright Act provides that it is not an infringement of copyright to deal with a work for the purposes of research, private study, criticism, review, news reporting, education, satire, or parody, provided that the dealing is “fair”. This is a fair dealing provision which provides exceptions to copyright in defined circumstances.

Uses that are considered a fair dealing with regard to education include:

•         the communication and reproduction in paper or electronic form of short excerpts from a copyrighted work. A ‘short excerpt’ means up to 10% of a work, a chapter from a book, a single article from a periodical, an entire artistic work or an entire newspaper article

•         the communication of a short excerpt to each student enrolled in a class or course as a class handout, as a post on a password protected intranet server, or as part of a course pack.

Compared to Australia, the significant difference is the inclusion of education as a specific fair dealing provision.

For more information see:

•         Copyright Matters! Some Key Questions and Answers for Teachers (Canadian Teachers’ Federation)

•         What is Copyright? (University of Ottawa)

Singapore

In Singapore, the Copyright Act includes a general “fair dealing” exception to copyright infringement. A certain amount of copying, for example, is permissible as long as it is a situation of “fair dealing” as determined by the Court. One of the factors considered in determining “fair dealing” is whether it is being used for an educational purpose. Factors considered when deciding whether copying in a certain situation is a ‘fair-dealing’ include:

•         the purpose and nature of the dealing, including whether such dealing is of a commercial nature or is for non-profit educational purposes

•         the nature of the work

•         the amount and significance of the work copied, in relation to the whole

•         the effect of the dealing upon the potential or value of the work; and

•         the possibility of obtaining the work within a reasonable time at an ordinary commercial price. 

For more information see:

•         Guide to Copyright: Copyright Basics (Singapore University)

United States

In the US, the scope of copyright is limited under a series of provisions in Chapter 1 of the US Copyright Law. Most significantly for educators, Section 107 states that the fair use of copyrighted works will not be an infringement of copyright.

Fair use of copyright is where the use is for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research. In determining whether a use is fair, four factors (‘fairness factors’) are taken into account:

1.        The purpose and character of the use e.g. whether it is commercial or non-profit, and whether the work been transformed.

2.        The nature of the copyrighted work e.g. is the work fictional or factual.

3.        The amount and substantiality of the portion used.

4.        The effect of the use upon the market for the work.

The fair use provision is meant to be an open ended, flexible and adaptable copyright exception. Therefore, it is up to court decisions to determine the scope and limits of fair use. In terms of educational purposes, the portion limitation for a fair use suggested by court decisions is 10% of the work.

It is important to note that such a fair use provision does not mean that all educational use of copyright material will be free. Rather, in essence, the provision enables educational institutions to access and utilize the broadest range of materials and resources in a reasonable way, that is clearly in pursuit of public interest, but not to the extent that it would be overly detrimental to the fair remuneration owed to the creator of the work.

For more information see:

•         More Information on Fair Use (U.S. Copyright Office)

•         Fair Use Overview (Stanford University). 

Questions (to be answered by each group):

After reading about the copyright laws in some other countries, what do you think about them?

Write a short paragraph on whether you think Australia’s copyright laws should be changed to include a flexible fair use or fair dealing exception. Some things to think about:

1.        What is confusing about the current educational copyright provisions in Australia?

2.        What are some teaching activities you can’t currently do that you would be able to do if we had a fair use or fair dealing exception?

3.        Do you think having a fair use or fair dealing exception in Australia would make it easier for teachers?

Please post (ie copy and paste) your answers in this week's google folder, under your group's number, by the end of Sunday 10 September 2023 and finish your peer review by the end of Tuesday 12 Setpember 2023.

[1]See https://www.infrastructure.gov.au/have-your-say/have-your-say-draft-copyright-reform-legislation and https://smartcopying.edu.au/the-copyright-access-reforms-2020/.