Copyright issues

 

Teachers use many teachings aids (audiovisual aids, printed materials such as books, journals or newspaper articles, CD-ROMS and web pages) to facilitate their pupils’ learning. Most of these are likely to be protected by some form of copyright.

Copyright is simply a “bundle of rights” including the right to copy materials (seeWhat is copyright?” in Copyright). In Australia, the Copyright Act 1968 (Cth) (“Copyright Act”) governs issues relating to copyright.

Ownership of copyright in educational material

Section 35(6) of the Copyright Act states that where a work is created under the terms of employment or apprenticeship, the employer owns the copyright. If, the work is created under the terms of a contract (not an employment contract) such as in freelance work, the author owns the copyright.

In educational institutions such as schools and universities, if the work is by staff (such as teachers and academics) involved in research, scholarship, artistic expression or educational or academic debate, the staff member owns the copyright for that work. Course materials, support materials or other intellectual property created by the staff in the course of their employment using the employer’s time and resources belong to the employer, who thus owns copyright in that work.

Students own copyright in their work. Any reports, publications, research papers or theses created in the course of their training or studies remain the property of students.

The Copyright Act does not specifically deal with copyright claims by pupils in schools. It appears that pupils own the copyright of their work. Parents may pursue any infringement of copyright on behalf of their children.

Duration of copyright differs with each kind of “work” (seeDuration of copyright”, in Copyright). Copyright in books used to exist for 50 years after the death of the author. If the book is co-authored (more than one author), the copyright used to exist 50 years after the death of the last author. However, since January 2005, copyright exists 70 years after the death of the author or 70 years after the last surviving author. For government publications copyright is still 50 years.

Infringement of copyright

The Copyright Act prohibits the copying or “substantial” reproduction of copyright material in any form. Substantial reproduction does not necessarily deal with the quantity of work reproduced, rather the quality and creative significance of the part reproduced. For more information, seeInfringement of copyright”, in Copyright.

Copyright may be infringed on the internet when browsing, downloading or printing works subject to copyright. For example, a teacher may infringe copyright by:

downloading and printing an article and selling it as a part of study materials; or

downloading text subject to copyright and sending it as an email attachment to other colleagues or students.

Copyright may be infringed if a venue or facility is made available to someone who infringes the copyright of others. For example, if a school provides a photocopier for use by staff and students and they use the photocopier to infringe the copyright of others, the school as well the individual staff and students may be liable for such an infringement.

Defences to infringement of copyright

The Copyright Act provides a number of defences to an allegation of an infringement of copyright. The most common defence that may be used by teachers, students, academics and other researchers is that of fair dealing.

The Act allows certain material to be copied without licence or permission of the author if the material is copied for research, study, criticism or review (ss 40–42). The defence does not allow a teacher or student to copy the whole textbook, the reviewer to extract the whole essay or poem, or a music teacher to copy the whole CD. Generally, students, teachers or researchers can copy 10% or one chapter of a printed book or a journal article for their research or study purposes.

The Copyright Amendment (Digital Agenda) Act 2000 (Cth) allows the defence of fair dealing for digital copying. The Copyright Act allows making a backup copy of a computer program for normal use or study (s 47C). Some computer programs permit software to be installed in the school network by gaining a site licence to use the program.

Various sections in the Copyright Act permit photocopying for educational purposes, either under a statutory licence or without a licence. For example, “work” could be copied:

for inter-library or archives loans;

by libraries or archives for users for research or study purposes;

if it is a thesis or unpublished work and over 50 years old;

if it is for preservation and replacement of work;

if a collection of works or broadcast is intended for educational use; or

if the institution is helping a disabled person under state laws.

Part VB of the Copyright Act permits educational institutions to do educational photocopying under a statutory licence by paying fees to Copyright Agency Limited. Educational institutions must also pay annual copyright fees to Screenrights (the Audio Visual Copyright Society Limited) to allow copying rights in respect of radio or television broadcasts in classes.

The reproduction of music or drama is allowed in classrooms as part of educational instruction. However, the public performance of music is permissible only with a licence from the Australasian Performing Rights Association (APRA).

For details of how to contact these and related organisations, seeContacts” in Copyright.

Moral rights of authors

Part IX of the Copyright Act allows authors or creators of work (literary, artistic, musical or dramatic work including films, but excluding sound recordings) to insist on having their names identified with their work even if the copyright belongs to others. Authors can also object to the derogatory treatment of their work or have the right of attribution or authorship. (SeeMoral rights” in Copyright.)

For example, an art teacher may insist on having his name identified if his work is used in the school brochure; a history teacher may object if a publisher distorts her article and publishes it in its journal; an English teacher can object if the content of her poem was changed by the school council without her permission and published in the school newsletter.

Infringement of moral rights is not a criminal offence. The remedies for infringement of moral rights include:

an order to cease the infringement;

payment of damages; and

the making of a public apology.

More information and copyright free resources

For information on copyright matters contact:

Copyright Agency Limited

Level 15, 233 Castlereagh Street,

Sydney NSW 2000

Tel: (02) 9394 7600; 1800 066 844

Email: info@copyright.com.au

Web: www.copyright.com.au

You can find more information about copyright issues in Victorian schools by searching on “copyright issues” at www.education.vic.gov.au.

The Smartcopying website at www.smartcopying.edu.au provides practical advice on copyright issues in schools, as well as interactive audio visual teaching and learning resources.

Other websites that allow teachers to copy materials free of charge for classroom teaching and educational purposes include:

Australian Screen: www.australianscreen.com.au

Enhance TV: www.enhancetv.com.au

Museum Victoria: www.museumvictoria.com.au