Copyright, Fair Dealing and Educational Use in the Internet Age

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Our educational institutions are in a flurry of digital and online change. Despite rapid advances in digital technology our copyright laws are stuck in the analogue era. This essay examines the evolution of fair dealing for education use in Australian copyright law and considers the case for further reforms to catch up with the impact of the Internet.
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  Copyright, fair dealing and educational use in the Internet ageAaron MagnerLegal Counsel UNSWS YNOPSIS The Internet has revolutionised the way we communicate, educate andmanage our lives. Our educational institutions are in a flurry of digitaland online change. Despite rapid advances in digital technology our copyright laws have been relatively stagnant, stuck in the analogueera. As a result there are significant barriers to getting educationalcontent online and available to a wider audience. Educationalinstitutions seeking to improve access to knowledge and offer newways of learning are too often hampered by regulation that thwartscollaboration, the free flow of knowledge and expression of ideas. Theimpact of the Internet necessitates major reform to the scope of fair dealing for educational use in the Copyright Act  . Copyright holder initiated litigation is likely to force legislative change. C ONTENTS I.I NTRODUCTION II. C OPYRIGHT   LAW   AND   FAIR    DEALING   FOR    EDUCATIONAL   USE   a.The analogue era b.The digital erac.The digital era – Copyright Act reformsIII. T HE   CASE   FOR    REFORM   OF   THE C OPYRIGHT A CT   IV. R  ECENT   LITIGATION –  LESSONS   FOR    EDUCATIONAL   INSTITUTIONS V. C ONCLUSION Page 1  I. I NTRODUCTION During this first decade of the 21 st century we have moved from an analogue world of  print media, books, photocopiers, videocassettes, blackboards, analogue televisionand radio, into the digital world of the Internet, podcasts, vodcasts, video and audiostreaming, wikis, blogs, iPhones and WiFi. Those fortunate enough to have anInternet connection can access and share knowledge in a way never imagined just 20years ago. The capacity for sharing ideas and collaboration between academics andstudents, business and consumers, government and citizen, locally, nationally andinternationally, is unprecedented.These technological developments bring exciting opportunities for teachers andstudents with educational institutions embracing the Internet and tools like YouTube,iTunesU and other web based platforms for teaching, learning and research. 1   Australian copyright law, however, is not well equipped for the Internet withsignificant legal obstacles and costs associated with getting educational content onlineand available to a wider audience. To be fair, new Internet technologies aredeveloping so rapidly it is difficult for copyright law to keep abreast. The Australian Copyright Act    1968 (Cth) ( Copyright Act  ) has constantly played catch-up withamendments made some time after technological developments. We may require alandmark judgement in resolution of a copyright dispute to force further reforms tothe Copyright Act  to accommodate the impact of the Internet.This essay will focus on the educational use exceptions in the Copyright Act  and their evolution in response to landmark judgments concerning the use of photocopiers,videocassette recorders and peer-to-peer file sharing networks. These decisions have been instrumental to the development of the Copyright Act  and remain relevant inrecent copyright disputes involving the Internet Service Providers (ISPs) iiNet. 2   Copyright judgments from Australian and United States (US) courts also give anindication of the liability of educational institutions, students and teachers when usingcopyright material from the Internet for teaching and learning or when facilitating thecopying and distribution of material not covered under the educational statutorylicences in Parts VA and VB of the Copyright Act  . This essay also considers the casefor reform of the Copyright Act  and looks at some possible Internet copyrightcollection schemes. II. C OPYRIGHT   LAW   AND   FAIR    DEALING   FOR    EDUCATIONAL   USE  a. The Analogue era The photocopier and the videocassette are the two most significant technologicaladvances from the 20 th Century that lead directly to changes in the Copyright Act  .Photocopiers enable the distribution of multiple copies of extracts from textbooks, journals and other publications for distribution to students, yet this infringes copyrightin the srcinal material, and deprives the copyright owners of revenue from sales andlicensing. The landmark judgment in UNSW v Moorhouse (1975) 3   determined a claim 1 All Australian Universities use one or more of the Internet based e-learning platforms including MyeLearning Vista, eLIMS and Lectopia. UNSW’s YouTube channel <www.youtube.com/user/unsw>has had more than 1.5 million views since its launch in October 2007. UNSW’s iTunesU portal has had180,000 podcast downloads since its launch in July 2008. Access to iTunesU is generally password protected and therefore within the scope of the educational use licence in Part VA of the Copyright Act  ,while YouTube is open to the world at large and therefore not covered by the Part VA.2 The Federal Court of Australia is currently hearing the case of   Roadshow Films Pty Ltd & Ors v iiNet  Ltd  (“  AFACT v iiNet Ltd” ), discussed below.3 University of New South Wales v Moorhouse [1975] HCA 26, where Justice Gibbs held that a personwho has under their control the means by which an infringement of copyright could be committed(such as a photocopying machine) and who made it available to other persons, knowing, or having Page 2  from the Australian Copyright Council that UNSW had authorised photocopying of  pages of books in the UNSW library thereby infringing the copyright of Australianauthor Frank Moorhouse. The High Court of Australia found that photocopyingMoorhouse’s book in this way was not permitted under the Copyright Act.  The Australian government dealt with the consequences of  UNSW v Moorhouse in1980 introducing a compulsory statutory licensing scheme in Part VB of the Copyright Act  to allow the copying of literary and artistic works for educational purposes. 4 The Part VB statutory licence is administered by the Copyright AgencyLimited (CAL) a non-profit statutory collection society. 5 CAL conducts a samplesurvey requiring educational institution staff to record their use of copyright material.Based on survey results universities, education departments and other educationalinstitutions negotiate the payment of an annual licence fee as equitable remunerationfor the use of copyright material. 6  The money paid to CAL under the licence is thendistributed to copyright owners. The policy objective behind Part VB is tocompensate copyright owners for the loss of sales of commercially publishedmaterials when education institutions make multiple copies of extracts or wholeworks for educational purposes. In this respect the Part VB statutory licence and theestablishment of CAL are intended to protect an existing market threatened bytechnological change. 7  The videocassette recorder enables the recording of television programs for viewingat a later more convenient time and was, like the photocopier, a technologicaldevelopment that lead to litigation and further  Copyright Act  amendments. Typicaleducational uses for the videocassette recorder include taping news, documentariesand other programs to show in classrooms, lectures and tutorials or make available inthe library. As Moorhouse v UNSW  did for Australia,   the decision in SonyCorporation v Universal City Studios Inc 8   (  Betamax ) set the scope of indirectcopyright infringement in the US. In  Betamax the US Supreme Court refused to holdSony Corporation, the manufacturer of the Betamax videocassette recorder, liable for either contributory or vicarious copyright infringement despite prima facie evidencethat the Betamax video machines could, and were, used to infringe Sony’s copyrightin television programs. 9 The Court determined that for Sony to be liable for thecopyright infringements of the users of this technology, actual knowledge of specific breaches was required, rather than a general knowledge that infringement could, andlikely would, take place. 10   reason to suspect, that it is likely to be used to infringe copyright, and omitting to take reasonable stepsto limit its use for lawful purposes, would authorise any infringement from that use.4 Browne, Delia; Educational Use and the Internet – Does Australian, Copyright Law Work in the WebEnvironment?, Volume 6, Issue 2, August 2009, <www.law.ed.ac.uk/ahrc/SCRIPT-ed/vol6-2/browne.doc> (22 October 2009). 5 The Copyright Agency Limited (“CAL”) is recognised under Part VB of the Copyright Act  as thedeclared society that administers the scheme on behalf of copyright owners. 6 In 2009 UNSW, for example, paid just under $1million to CAL under Park VB licence. TheUniversity receives approximately $255,000 from CAL of which approximately $141,000 isredistributed by the University to copyright owners.7 Jennifer Wilson, “The Digital Deadlock: How Clearance and Copyright Issues are KeepingAustralian Content Offline”, Screenrights and AFRTS White Paper 2009, p.2.8 Sony Corporation v Universal City Studios Inc 464 US 417 (1984); 104 S Ct 774; 78 L Ed 2d 574;1984 US LEXIS 19.9 Rimmer, Matthew (2006) “Robbery Under Arms: Copyright Law and the Australia-United StatesFree Trade Agreement”,First Monday(3). <http://firstmonday.org/issues/issue11_3/rimmer  /index.html> (26 October 2009).10  Betamax was approved in the High Court of Australia in  Australian Tape Manufacturers Association Ltd v Cth (1993) 176 CLR 480. Page 3  The Australian Government, following  Betamax , introduced further reforms in 1989to set up a Part VA statutory licence to permit educational institutions to make off-air copies of broadcasts for educational purposes. 11 The Part VA licence is administered by Screenrights a collection society that, like CAL, requires educational institutions to pay equitable remuneration for all licensed copying and communication of radio or television. Part VA applies to previously or simultaneously broadcast programmesavailable on an Australian free-to-air broadcaster’s website but does not extend tosimilar broadcast material available on international broadcasters’ websites or toonline audio-visual material in general. 12  Together the Part VA and VB statutory licences enable educational institutions tolegally use photocopiers, videocassette recorders and other analogue copyingtechnologies while ensuring that the author and/or copyright owner is remunerated for their work. 13   b. The Digital Era Photocopiers and videocassettes were typical analogue technologies from the pre-digital era. The dawn of the digital era began with the introduction of the CD andDVD formats allowing the digitisation of music, video and other media, followed bythe rapid development and widespread use of the Internet. 14 Internet use in Australiatook off from about the year 2000. 15 Until then, ownership and access to computerswas not common in the average household and computer use as a mainstream tool for learning and teaching was still in its infancy. In Australian schools and universitiescomputers were usually confined to computer labs, and Internet speeds were slow andlimited in bandwidth. 16  By 2009 however all Australian University students and a large majority of Australianschool students have access to a computer with broadband Internet. 17 Advances intechnologies such as file compression and MP3 for music and a range of digital videoformats including AVI, MPEG4 and others enable copyright works to be perfectlycopied and then shared via the Internet. 18  The availability of  broadbandand continual advances make file sharing easier, faster and more prevalent, with increasingdownload speeds making the distribution of entire movies, TV series, albums and 11 Copyright Act Amendment Act 1989 (Cth).12 Jennifer Wilson, “The Digital Deadlock: How Clearance and Copyright Issues are KeepingAustralian Content Offline”, Screenrights and AFRTS White Paper 2009, p.2.13 For a history of the evolution of Copyright in Australia see: Atkinson, Benedict, The True Historyof Copyright: The Australian Experience 1905-2005 , 2007, Sydney University Press.14 CD players and discs were first released in the US and Australia in 1988. The DVD format was firstintroduced in Australia in March 1999. <http://en.wikipedia.org/wiki/Compact_Disc> and<http://en.wikipedia.org/wiki/DVD> (22 August 2009).15 Between 1998 to 2007-08, household access to the Internet at home has more than quadrupled from16% to 67%, while access to computers has increased by 31 percentage points to 75%. See AustralianBureau of Statistics - Household Use of Information Technology, Australia, 2007-08<http://www.abs.gov.au/AUSSTATS/abs@.nsf/mf/8146.0> (accessed 25 October 2009). 16 Browne, Delia; Educational Use and the Internet – Does Australian, Copyright Law Work in theWeb Environment?, Volume 6, Issue 2, August 2009, <www.law.ed.ac.uk/ahrc/SCRIPT-ed/vol6-2/browne.doc> (22 October 2009).17 See Australian Bureau of Statistics - Household Use of Information Technology, Australia, 2007-08<http://www.abs.gov.au/AUSSTATS/abs@.nsf/mf/8146.0> (25 October 2009).18 MP3 is an abbreviation for “Moving Picture Experts Group-1 Audio Layer 3”, AVI is anabbreviation for “Audio Video Interleave” and MPEG4 is an abbreviation for Moving Picture ExpertsGroup 4. See also Buskirk, V. (2005) “Top five ways MP3 has changed the world?<http://reviews.cnet.com/4520-6450_7-6266276-1.html?tag=txt> (25 October 2009). Page 4
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