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Flexible Dealing

The Flexible Dealings exception: What am I allowed to do?

If you want to use copyright material in a way not permitted by the statutory licences or other, specific, exceptions under the Copyright Act, you may be able to rely on the “flexible dealing” exception in s 200AB.

The "flexible dealing" exception permits schools to make limited use of copyright material for free, for educational instruction, if the use satisfies a number of criteria. You must assess your proposed use against those criteria on a case-by-case basis.

This fact sheet is divided into three parts:

  • How to determine if your proposed use is a permitted “flexible dealing”
  • Examples of common activities that are permitted “flexible dealings”
  • Some frequently asked questions about “flexible dealings”

1. How to determine if your use is permitted under the “flexible dealing” exception in s 200AB

a. No other exception or statutory licence applies 

If your proposed use is covered by the statutory licence (see http://www.smartcopying.edu.au/copyright-guidelines/education-licences-(statutory-and-voluntary-licences) or another statutory exception (eg s 28 which applies to classroom performances) you cannot rely on s 200AB. For further information on the statutory exceptions see (http://www.smartcopying.edu.au/copyright-guidelines/copyright---a-general-overview/1-13-copyright-exceptions).

b. You want to use the content for a specific educational purpose

Your proposed use must be for educational instruction. This includes:

  • teaching (in a classroom or remotely)
  • preparing to teach
  • compiling resources for student homework or research
  • doing anything else for the purpose of teaching.

You must also have a specific instructional purpose in mind (eg “next week’s lesson”) at the time that you make the copy. 

It is not permissible to rely on this exception to make copies of content “just in case” you might need it at some time in the future. This is an important limitation on s 200AB.

Your use must not be for the purpose of the school obtaining a profit or a commercial advantage. Cost recovery is OK.

c. The use isn't 'unreasonable'

Section 200AB will not apply if your proposed use “conflicts with the normal exploitation of the work” or “unreasonably prejudices” the interests of the copyright owner.  You need to ask yourself the following questions:

  • Can I purchase the material/obtain a licence within a reasonable time?
    • If you can purchase the material in the form you require within a reasonable time, or obtain a licence for your proposed use on reasonable terms, then you must do so. [If in doubt about this you should contact the NCU.]
  • Have I used no more than I need to?
    • It is important to ensure that you do not use any more of the content than you need for the specific educational purpose that you have in mind. You should ensure that you would be able to explain (if asked) why you’ve used the content you have and why you’ve used the amount you have.
  • Have I ensured that access to the content is limited to the students who need to have access to it?
    • You must take reasonable steps to ensure that the content can only be accessed by staff and students who are intended to have access to it. Ways of achieving this include keeping the copy on a password-protected LMS, and restricting access to the specific students and staff who need it. You should archive the resource (ie take it off the sharing platform, disable access etc) when it is not needed.
  • Have I taken steps to prevent further copies being made?
    • You must take reasonable steps to prevent further copies being made by students who are given access to the resource. Ways of achieving this would include limiting student access to any audio-visual content to streaming only (ie not downloading). You should not make the content available to students on a USB or other device unless there is a way to lock the resource into a 'viewing only' mode that isn't able to be changed.
  • Have I checked that the content I have copied is not pirated?
    • Avoid copying films off peer to peer websites, as these websites will often contain pirated content. If you are copying from a video sharing site, such as Slideshare, you should be careful to avoid copying any content that is likely to have been made available without the permission of the copyright owner. This will not always be clear. If in doubt, don’t use the content.

Important note

 Previously, s 200AB could not be used if the copyright content was subject to a technological protection measure (TPM). This impediment no longer applies.

 From 2018, schools are permitted to circumvent a TPM in order to rely on s 200AB.

 
2.Examples of common activities that are permitted under the “flexible dealings” exception

Some examples of uses that are permitted under the flexible dealings exception include:

  • converting 8-track or VHS tapes to DVD where it is not possible to buy a DVD of that film and the DVD is needed for teaching purposes
  • copying a small extract of audiovisual material from a CD-Rom or DVD to hard disc or PowerPoint for classroom display
  • compiling short extracts of audio-visual material for use in class (such as making a DVD of short extracts of several films for an English class) when it is not possible to buy a similar teaching resource
  • copying a French language song that is not available for purchase in digital format to a digital file for inclusion in a podcast for a French language class
  • including short extracts of music in PowerPoint teaching aids
  • translating an extract of an Australian novel into Japanese (where you cannot buy a copy in Japanese) for use in a Japanese language class
  • staging a free practice performance of a play on a drama syllabus for family and friends to allow drama students to practice for a performance assessment
  • preparing an arrangement of a musical work for students to perform in a music class when you cannot buy the arrangement you need
  • copying part of a track from an audio CD for use in an aural exam or assignment

Note:  These examples assume that the source copy of all materials has been legitimately acquired by the school. 


3. Some frequently asked questions about “flexible dealings”
 

Who can use section 200AB?

Teachers and staff in schools can use s 200AB provided they satisfy the requirements set out in section 1 above. 

 What types of copyright material does section 200AB cover?

You cannot rely on s 200AB for a use that would be covered by another exception or statutory licence. That limitation effectively means that s 200AB will not be of any use for television or radio broadcasts (which are covered by the statutory licence). Nor will s 200AB be of use in most cases where the copyright material that you want to use is a text based work (such as a book, play, poem, journal article or newspaper) or an artistic work (such as a photograph, diagram, cartoon, or illustration), as this content is also covered by the statutory licence. (There are limited exceptions to this: if your intended use is to translate or perform a text based work, s 200AB may apply. That’s because these uses are not covered by the statutory licence.) 

This means that s 200AB will mostly be used the following types of copyright material - provided that you comply with the conditions applying to s 200AB:

  • Apps
  • sound recordings (CDs, podcasts, MP3 files)
  • films (online and in VHS/DVD format)

What does section 200AB allow me to do with copyright material?

Provided that your use satisfies the requirements set out in section 1 above, you can rely on s 200AB for all kinds of uses, including: 

  • Copying the content
  • Communicating the content (e.g. emailing or uploading to the school intranet)
  • Make an adaptation (e.g. translating from one language to another)
  • Performing a play etc.

How do I know if my use is for the purposes of giving educational instruction?

Your proposed use must be for educational instruction.  “Educational instruction” includes teaching (in a classroom or remotely), preparing to teach, compiling resources for student homework or research, and doing anything else for the purpose of teaching.

Note that "just in case" copying will generally not be sufficient, (eg "I'll copy this in case I need it sometime in the future").  You should have a particular instructional purpose in mind.

Will my use still be for educational instruction if I charge a cost recovery fee?

Yes.  Cost recovery is OK. However, if you or your school is making a profit from the use or obtaining some other commercial advantage, you cannot rely on s 200AB. 

Can I circumvent to copy in reliance on s 200AB?

Yes. This was not permitted prior to 22 December 2017, but it is now permitted.

For further information, contact NCU.