The Copyright Act 1968 (Cth) (the Act) has a significant influence on the way higher education providers can use copyright material, including books, articles, online research resources, films and sound recordings.
The Act has undergone significant change in the past year. In late 2006, a large number of amendments were made, many of which impact upon educational institutions and allow them to make further uses of copyright material, often without the need to pay a fee to the copyright owner. These amendments are currently being analysed and digested to see how they can be used to the benefit of educational institutions.
The education amendments include:
the introduction of a new exception to clarify that certain system level caching (eg proxy caching) will not infringe copyright;
the introduction of new exceptions allowing the communication of copyright material to a class in the course of educational instruction; and
the extension of the statutory licence for the copying and communication of broadcasts to free-to-air broadcasts posted on the Internet.
In addition, s200AB, the 'flexible dealings' exception, was introduced into the Act. This exception allows copyright material to be used by educational institutions in certain circumstances where no other exception or statutory licence would permit the use. For the exception to apply, the use must:
not be for a commercial advantage or profit;
be for the purpose of giving educational instruction;
be a special case;
not conflict with the normal exploitation of the material; and
not unreasonably prejudice the legitimate interests of the copyright owner.
The latter three requirements reflect Australia's obligations as a party to international treaties and are commonly referred to as the 'three step test'. Usually, this test is considered by Government when it is contemplating the introduction of exceptions into domestic copyright laws. So far as we are aware this is the first time it has been included in the local laws of a common law country. This means that there is very little jurisprudence to provide those seeking to rely on the exception, and a Court, with guidance as to whether or not a use will meet the requirements of the three step test. Therefore there is uncertainty about the scope of the exception.
Minter Ellison has been working with Australian schools over the course of this year to establish practical guidelines to facilitate their reliance on the new flexible dealings exception and their use of the educational exceptions and statutory licences more broadly. We are also meeting with copyright officers from some of the Universities to discuss the practical application of the flexible dealings exception. Copyright in the educational arena is an issue of key importance to Australian society.
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