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Answering teachers' common questions about fair use

Australian Law Reform Commission Review - Copyright and the Digital Economy

The Australian Law Reform Commission has proposed two reforms to copyright laws relevant to Australian schools:  the introduction of a fair use exception and replacing the current educational statutory licences with voluntary (ie. non-statutory) licences.

More information about the ALRC’s proposals[1] as well as information on debunking some of the common myths[2] about fair use and why Australian schools need fair use[3] is available on the Smartcopying website.

This document tries to answer some questions teachers have asked about the impact of the ALRC’s proposals.

 

Will fair use mean I have to get copyright permissions myself?

No.  As is currently the case, the National Copyright Unit, on behalf of the Copyright Advisory Group to the Standing Council on School Education and Early Childhood (CAG) would provide clear information about what copyright uses are allowed in Australian schools.  For educational uses that are not covered by fair use, the National Copyright Unit would negotiate a non-statutory collective licence with a collecting society for that use.

The Australian school sector is already very familiar with non-statutory collective licensing.  This is just a fancy name for the licences that are negotiated between schools and collecting societies where the terms of the licence are not set out in the Copyright Act, but left to the parties to negotiate.  

For example, the use of music in Australian schools is currently covered under non-statutory collective licences, as are uses of films for ‘rainy day’ activities and school excursions.  The National Copyright Unit negotiates these licences with collecting societies or directly with copyright owners, and then develops information sheets and guidelines for all schools on the uses permitted by the licences.

Schools and teachers would not be required to seek individual permissions for their uses of copyright content in classrooms.  Nor would copyright owners have to negotiate individually with schools and teachers.

 

Would my school be covered by a non-statutory collective licence?

Almost certainly yes.  The National Copyright Unit negotiates collective licences on behalf of all government schools, all Catholic schools and almost all independent schools.

 

Will teachers have to make copyright decisions in the classroom?

Most things that teachers want to do with copyright content in class would be covered by either fair use or by non-statutory collective licences negotiated on their behalf.  Clear guidelines and educational materials would explain what uses are permitted.  

As is currently the case, teachers may sometimes need to use their judgment.  For example, different copyright considerations can apply to new releases and out of print materials.  This would be the same with fair use.

 

Will fair use create more work for teachers?

No.  We believe fair use would actually make things much easier for teachers.  

Teachers currently need to learn different rules for different types of content and different teaching technologies.  For example, different rules currently apply to novels v short story collections, artworks v illustrations, CDs v MP3s, books and newspapers.  The rules apply differently depending on whether the teacher is standing at the photocopier or the interactive whiteboard.

In contrast, fair use would allow clear and simple guidelines to be created for teachers which could apply irrespective of the content, teaching method or technology being used

 

Will fair use mean teachers are more likely to get sued?

No.  The previous answer explains why we believe that fair use will actually make life easier for teachers by replacing a set of technical and complex rules with simple, clear guidelines that can work with digital technologies. 

We believe that fair use will actually make it safer for teachers to use new technologies in the classroom.

In theory, it has always been the case that teachers can be sued if they infringe copyright.  As far as we know, this has never happened in Australia.  Consider this:  teachers in the United States have worked with fair use since 1976 and we are not aware of any teacher who has been sued for copyright infringement.

Does fair use mean authors won’t get paid?

No.  The Australian school sector spends over $665 million each year purchasing educational content for students.  In addition, government and non-government schools collectively spend an additional $80 million dollars each year on licence fees paid to collecting societies for the use of copyright content in Australian schools.  

There is no suggestion that the ALRC’s proposals would impact in any way the amount that the school sector spends buying educational resources.  Some activities that are currently paid for by Australian schools would be covered by fair use, which may have some impact on licence fees under collective licences.  Alternatively, the licences could be negotiated to allow a greater range of teaching activities with appropriate payment for creators.

It’s important to put this in context.  Australian schools currently pay licence fees for classroom uses such as printing a free tourism map from a website for students to use in class or asking a student to print a map from Google maps as part of a homework exercise.  Fair use will simply ensure that licence fees are better directed to authors who are trying to make a living from their works.

 

More information

If you would like to read more about why Australian schools support the ALRC’s proposals, please read CAG Schools’ submissions to the ALRC’s issues paper, available here[4] and supplementary submission here[5]; and CAG Schools’ submission to the ALRC’s discussion paper, available here[6]  and supplementary submission here[7].

 

 

For further information see the SmartCopying website at www.smartcopying.edu.au or contact your local copyright manager.  You can also contact the National Copyright Unit on (02) 9561 1204 or at email delia.browne@det.nsw.edu.au.