BY ALEC DUNCAN

The copyright regime

Copyright is the recognition of the creator’s interest in benefiting from their work. In the first statutory regime for copyright—the Statute of Anne—its purpose was recorded as the “encouragement of learning…[and of] learned men to compose and write useful books”.[1] Copyright attaches to any original ‘work’.[2] A ‘work’ is any physical manifestation of the application of time, skill and judgment.

In practical terms, copyright exists in the following types of ‘work’: [3]

  1. Literary, dramatic, musical or artistic works;
  2. Sound recordings;
  3. Films;
  4. Communication works (sounds, visual images or other information broadcast to the public—e.g. the news); and
  5. Typographical arrangements of published editions.

A work is original if it is not commonplace. It does not need to be unique, but it cannot be substantially similar to any original. Though this standard is often determined on a case-by-case basis, it means that any derivative work can only use the original as inspiration, and cannot express ideas in the same way as the original.

The copyright owner has the exclusive right to:

  1. Copy;
  2. Distribute;
  3. Perform;
  4. Play;
  5. Show;
  6. Communicate; or
  7. Adapt the work

The copyright owner also has the right authorise any person to do any of the aforementioned acts.[4] Anyone who does any one of those acts without the permission of the copyright owner breaches copyright if that act is in relation to a whole or substantial part of the work.[5]

Implications for teachers and schools

Copyright raises two main educational issues: first, the use of copyrighted works in the learning process; and second, the use of works created by teachers themselves, but used subsequently by teachers at different schools. The Copyright Act clearly states what actions will breach copyright. [6] However, there are also many exceptions which apply to teachers and students, and it is less clear under what circumstances schools will be able to rely on those exceptions because their language is vague.

Let’s examine some of these exceptions. Teachers can make one copy of all or part of a work (excluding film or sound recordings): [7]

a) To prepare their lesson; or

b) To assist them in delivering the lesson

c) The copy is for the teacher’s use only

d) However, teachers may make multiple non-facsimile copies (e.g. copying out a poem by hand rather than photocopying or scanning).

The rules are more restrictive if teachers want to provide copies to students.[8] Teachers can copy:

a) Up to 3% of the work; or

b) Up to 3 pages of the work (whichever is greater); but

c) The amount copied cannot exceed 50% of the whole work (e.g. if the desired extract is 3 pages, only one and a half pages may be copied)

d) Teachers may not charge students for the copies.

However, the exceptions get even more specific regarding film and sound recordings. For films and soundtracks, teachers can copy that work: [9]

a) To prepare their lesson; or

b) To assist them in delivering the lesson

c) The lesson must be to instruct students on how to make such recordings—the recording must be used for its technical aspects, not for its substantive content

d) Students of such classes may also copy such works, before, during, or after such a class

Sound recordings may only be copied where the lesson is either a language lesson, or is delivered by correspondence.[10]

However, the rules regarding ‘performance’ works (e.g. dramatic or musical works, and film and TV works) are remarkably relaxed compared with the other rules. Teachers and students may perform literary, dramatic or musical works, or show films or other forms of broadcast works (e.g. radio): [11]

a) To other students and teachers of the same school (this often excludes parents);

b) The performance or showing must be for the purposes of instruction

Schools must store copyrighted material separately from other educational material and must identify the author and source.[12] Access can only be given those who can show (e.g. by logging-on) that they have permission to access to the copy.[13]

The Copyright Act provides a general ‘fair dealing’ exception limited to use for the purposes of criticism, review, reporting of current events, [14] and for research or private study.[15] This is most applicable to students. Students can copy a reasonable portion of works: ‘Reasonableness’ is often defined in terms of:

i) The purpose use (i.e. the ‘fair dealing’ purposes described above);

ii) The nature of the work (i.e. it is less fair to copy a work that required more skill to produce (e.g. a sculpture or painting));

iii) The effect copying the work will have on its value;

iv) The quantity of material copied and the proportion of the final work based on copied material; and

v) Whether the material could have been bought, and if so, at a reasonable price.

However, teachers cannot provide students with the copies unless they comply with the 3% or 3 page limit.

The foregoing exceptions apply only to the copying and communication or performance of works. Thus, these exceptions do not allow teachers to adapt the works to suit their own particular needs because there is no ‘fair dealing’ provision which includes adaptation.

Solving the issues

The Copyright Act allows owners to license (that is, give permission for) certain actions.[16] However, obtaining licences to use copyrighted materials often involves a significant investment in time and money. If a request for permission is denied, the statutory exceptions, noted above, apply.

However, schools might be more willing than other creators to license the adaptation and use of teaching resources. After all, there is mutual benefit from permitting the use of copyrighted work for education, and little corresponding financial benefit from publishing the resources.

The Creative Commons Licences are one tool that BOTs can use to make resources freely available to others who wish to use them. The licences notify users which actions the copyright holder allows others undertake, and what actions they may not.

A more creative option would be to encourage more independent research in learning. For example, having students research the material (within guidelines provided by the teacher) would avoid the rule that teachers cannot provide more than 3% or 3 pages of a work to their students. Any use of copyrighted material by students would fall under one or both of the fair dealing exceptions. Of course, this shift in teaching style would not be appropriate for all students or schools.

Reforming copyright

The education exceptions have remained largely untouched by incremental reform—little has been done to address the greater collaboration which the internet has allowed. There is a greater ability for teachers and students spread ideas and to adapt them to suit their own needs—but the copyright regime does not allow this without permission. In effect, derivative works must be created from the ground up because copyrighted works must, in effect, form only the kernel of a derivative.

The copyright regime’s purpose does not fit well with education. It is designed to incentivise the production of knowledge by protecting creators’ financial interests. However, if the creators do not benefit, then the underlying purpose of the regime is redundant. It is also arguable that there is a public interest in allowing teachers to adapt works because it allows for the dissemination and for adaptation of educational resources, resulting in better outcomes. Currently, the copyright regime stifles teachers’ creativity (and thus students’ learning) in the name of protecting a non-existent benefit.

In their report on the education exceptions under the Copyright Act 1968 (Cth), the Australian Law Reform Commission (ALRC) concluded that the confusing education exceptions should be replaced by a general ‘fair dealing’ exception.[17] Australia’s education exceptions are very similar to New Zealand’s and were criticised as “inflexible” and “impractical” and inconsistent in their application.[18] The ALRC noted the position in the USA and UK allows “minimal, non-commercial and fair” use, which does not displace the “sale and licensing of education materials”.[19]

However, the ALRC report did not deal with teacher-created content and was rejected by the Australian government. Thus, it seems that concrete reform for adaptive work for teacher-created content is far from becoming a reality any time soon.

Notes
[1] Statute of Anne 1710 8 Anne, c. 19, cl 1.
[2] Copyright Act 1994, s 14.
[3] Section 14(1).
[4] Section 16(1).
[5] Section 29.
[6] Ibid.
[7] Section 44.
[8] Section 44(3).
[9] Section 45(1).
[10] Section 45(3).
[11] Section 47.
[12] Section 44A(1).
[13] Section 44A(2)-(3).
[14] Section 42.
[15] Section 43.
[16] Section 16(1).
[17] Copyright and the Digital Economy [2013] ALRC 122 at 14.4.
[18] At 14.6.
[19] At 14.21-14.22.

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