This area summarises the changes to the Copyright Act 1968 that have been ushered in by the Copyright Amendment (Digital Agenda) Act 2000. It then expands a few critical areas that require schools to take action, or to be aware of as emerging dilemmas.
Copyright Amendment (Digital Agenda) Act 2000
What does this mean for schools?
The new legislation introduces an array of changes that are important for schools to understand. The legislation:
- Introduces a new “technology-neutral” right of communication, to the public, which supersedes the previous rights to broadcast and transmit to subscribers via a diffusion service. This right of communication for copyright owners covers sending material electronically, for instance by email, and making material available online.
- Clarifies that the right to convert copyright material from hardcopy into electronic form (“first digitisation”) belongs to the copyright owner.
- Extends the Statutory Licence under Part VB of the Act, to permit reproduction and communication of works in electronic form.
- Extends the library and fair dealing exceptions to works in electronic form.
- Allows for insubstantial parts, of works in electronic form to be reproduced and communicated on the premises of educational institutions.
- Extends the Statutory Licence under Part VA of the Copyright Act to permit copying and communication of broadcasts in electronic form.
- Imposes sanctions against tampering with electronic rights management information attached to or embodied in a work.
- Imposes sanctions against making of and supplying of circumvention devices and services with limited exceptions for supplying to educational institutions and libraries.
- Clarifies the position regarding liability of internet service providers and telecommunications carriers for infringements of copyright by their service users.
First Digitisation
As already mentioned, the Copyright Act has been updated to recognize that copyright owners have the exclusive right to convert copyright material into electronic form. This is called “first digitisation”.
Generally first digitisation is treated the same as making a hardcopy or analogue reproduction, or a reproduction from a work originally in electronic from.
For schools the ready availability of scanning devices today, and the actual ease of digitising material means there is an imperative to understand what is permitted and not permitted in this area.
Schools need to be aware that the copyright licence for educational institutions under Part VB of the Act allows schools to reproduce a reasonable portion of a work, (or more in certain circumstances), including a copy that involves first digitisation of copyright material. However, there are harsh penalties for authorising or committing an infringement by converting hardcopy copyright material into electronic form when the statutory provisions do not cover such an act.
The Statutory Licence for Reproduction and Communication of Works in Electronic Form (Part VB of the Act)
In effect the Copyright Amendment (Digital Agenda) Act 2000 has resulted in schools now having to deal with two schemes under the Statutory Licence provision of Part VB of the Copyright Act.
The pre-existing scheme is the Hardcopy Licence (i.e. the former print copy licence) that many educational institutions already rely on. This licence applies to copies made from hardcopy sources such as books and journals. It also covers the digitisation (scanning) of hard copy works within the limits of the hardcopy licence and their conversion to electronic form. (See below for limits)
The new scheme called the Electronic Reproduction and Communication Licence covers reproduction in an electronic form (e.g. from digital to digital) and communication of copies in electronic form (e.g. posting copies on a school intranet).
Reproduction and Communication of Works in Electronic Form
The Copyright Amendment (Digital Agenda) Act 2000 amended the Part VB educational copying provisions in the Act to allow educational institutions to:
- reproduce literary, dramatic, artistic and musical works from “electronic form”;
- reproduce literary, dramatic, artistic and musical works into “electronic form”; and
- “communicate” literary, dramatic, artistic and musical works to students or staff (for example, via email or a secure website or intranet site).
The word reproduction is used instead of copying because it encompasses a number of copying mechanisms, not just photocopying.
Schools can exercise the statutory licence to reproduce or communicate:
From periodicals
One article from a periodical publication, and more than one if the articles relate to the same subject matter.
From literary, dramatic or musical work
The whole of a work if it has not been separately published in electronic form within a reasonable time, at an ordinary commercial price.
If separately published the limit is either 10 per cent of the words, or up to one chapter from a literary or dramatic work, or 10 per cent of a musical work.
From artistic work
The whole of an artistic work can be copied under the statutory licence.
From Anthologies
The new scheme does not contain a separate provision for the reproduction or communication of literary or dramatic works in anthologies in electronic form.
Communicating under the new scheme
Communication includes making copyright material available online and transmitting it electronically. Examples of communication include:
- emailing text, images and notated music to students and staff;
- posting text, images and notated music to intranet and Internet sites for student and staff access; and
- narrow-casting, i.e. video conferencing.
Generally, the amounts you can communicate are the same as the amounts you can reproduce under the educational copying schemes.
Where a work is communicated in electronic form, schools need to be aware of the following requirements:
- The work must include a specific form of notice, as specified in the Copyright Act;
- Reasonable steps to make sure that any communication can only be received or accessed by the intended recipient. This might entail for example, the school’s intranet being a secure service.
- Only one part of an entire work can be made available online, at any one time. (Two or more extracts from the same work cannot be simultaneously made available).
- The online communication of reproduced work has an associated duration limit of twelve-months, for purposes of the licence. Beyond that period the material is deemed to be a new reproduction and communication, and so on, for each further twelve-month period. These “deemed” reproductions require additional remuneration.
Administration of the Electronic Reproduction and Communication Licence, under Part VB of the Statutory Licence
Part VB of the Act requires administering body (such as a State Department of Education) or the educational institution (such as an independent educational institution) to send an Electronic Use Notice to the Copyright Agency Limited (CAL).
CAL is empowered to administer the new scheme on behalf of copyright owners, as it is already the declared society under the relevant section of the Act.
The legislation provides for the educational institution and the collecting society to agree upon payment rates for the electronic reproduction and communication made by schools. If no agreement is reached, then the Copyright Tribunal will determine the rate independently. At this time the rate for digital reproduction has not yet been determined.
All government schools, all Catholic schools (except Queensland), and many TAFE institutes (except in Tasmania, NT and some in Victoria) throughout Australia are licensed for electronic reproduction and communication. Most independent schools are licensed through the relevant Association of Independent Schools in each state, but you will need to check with your administrators to ensure that is the case.
The Library Exceptions for Reproduction and Communication of Works in Electronic Form
The existing library exceptions in the Copyright Act have been extended to cover:
- electronic reproduction of a work in hardcopy form; and
- all forms of reproduction and communication of a work in electronic form.
However, where an electronic reproduction of a work is communicated there are two conditions:
- it must be accompanied by a specific form of notice; and
- the library must destroy the reproduction it holds, as soon as practicable after the communication.
In addition, a revised commercial availability test applies to the inter-library loan of electronic material.
Libraries can now make works acquired in electronic form as part of their collection available online within their premises. This needs to be done in a way that prevents patrons from:
- making an electronic reproduction of the work; or
- communicating the work, including by email.
Statutory Licence Copying and Communication of Broadcasts (Part VA of the Copyright Act)
Under the Copyright Act, a copy of a broadcast may be made or communicated (or both) by or on behalf of a body administering an educational institution, for educational purposes without infringing copyright in the broadcast, or the underlying works in the broadcast. This provision requires that the institutions has provided Screenrights with a remuneration notice.
This provision covers copying a broadcast electronically, such as on CD or DVD, and communicating it electronically, for instance by making it available on a school’s intranet or by e-mailing it.
There are several conditions associated with the electronic communication of a broadcast including:
- the communication must include a notice in specified form; and
- reasonable steps must be taken to ensure that the communication can only be received or accessed by persons entitled to receive or access it. This may mean for instance ensuring that the school’s intranet is secure.
Finally the communication of copied broadcasts online has an associated duration limit of twelve-months, for purposes of the licence. Beyond that period the material is deemed to be a new copy and communication, and so on, for each further twelve-month period. These “deemed” reproductions require additional remuneration.
Fair Dealing
This exception applies to students who are doing their own research and study rather than to works that are reproduced and communicated to students by teachers. These works fall under Part VB of the Copyright Act.
The fair dealing provisions of the Act have been extended so that a person may make a reproduction of an article (or multiple articles dealing with the same subject matter) in a periodical publication, or a reasonable portion of a literary, dramatic or musical work, in electronic form, for the purposes of research of study.
Reproduction and Communication of Insubstantial Parts of Works in Electronic Form
An insubstantial part (1 per cent or less) of a published literary or dramatic work may be reproduced or communicated (or both) if:
- the reproduction or communication is carried out on the premises of an educational institution; and
- for the purposes of a course of study provided by it.
Unlike reproduction and communication under the Statutory Licence, insubstantial copying is not remunerable. However, the Copyright Act does not permit:
- reproduction or communication of one insubstantial part of a work within 14 days of the reproduction or communication of another insubstantial part of the same work; or
- making more than one insubstantial part of a work available online at the same time.
Changes required in Copyright Notices
The extension of copyright law into the new area of electronic reproduction and communication means a number of on-the-ground changes for schools.
As it is a legal requirement that notices be placed on equipment used for any reproduction or communication of copyright material, schools will need to review the currency of their existing notices.
Further they will need to post the new notices required by the passing of the Copyright Amendment (Digital Agenda) Act 2000 concerned with transmission or communication of copyrighted materials.
These notices are available for download from the Copyright Aware website with instruction about their application and installation.
