Teachers and students use text and images every day whilst at school. Despite the apparent simplicity of using printed material and images, it is important to remember that copyright law may have some impact on what can and cannot be used. This area of copyright is covered by The Commonwealth Copyright Act 1968 (known as the Act in this article). As copyright law can be extremely complex, it is beyond the scope of this article to go into great detail about its operation, however, there are a number of fundamental concepts which are important to keep in mind. My next three articles will attempt to outline the main areas that importantly effect educators.
First, I need to explain the concept of ‘copyright’. Put simply, copyright is a bunch of rights in certain creative works such as text, artistic works, music, computer programs, sound recordings and films. The rights are granted exclusively to the copyright owner to reproduce that material or to perform or show the work to members of the public. Copyright owners can prevent others from reproducing or communicating their work without their permission or they may sell these rights to someone else.
Copyright does not protect the ideas or concepts behind written or artistic work but rather the words used in the text or script of the film, for example.
Copyright is a separate right to the property right in an object. For example, someone may own a painting but a different person may own the copyright in
In Australia, copyright protection is automatic. There is no need for copyright registration, nor is there a legal requirement to publish the work or to put a copyright notice on it. The work will be protected as soon as it is put into material form, such as being written down or recorded in some way.
Copyright protection generally lasts for a very long period of time. For most works (such as literary works, artistic works, dramatic works etc. copyright protection lasts for the lifetime of the author of that work, plus an additional 70 years. This underscores the value that the Australian Government has put on copyright protection for the benefit of authors of particular works.
The following are a number of different types of works to which copyright applies, and which might be relevant to the education sector.
The Act protects “text works”, which refers to literary, dramatic and musical works in print and electronic form. Copyright in such works will not be infringed if the copying or communication by the teacher is done:
- With the express permission of the copyright owner
- Under the free use and statutory exceptions rule
- Under Statutory Text and Artistic licence.
Copyright is not infringed by a teacher or student performing, reading or reciting a literary work while giving or receiving educational instruction in class. Further more, communicating a text work for classroom performance is also permitted (for example, displaying it onscreen using PowerPoint or an electronic whiteboard). Moreover, copying by hand or for an exam is not a breach of copyright.
Images such as artistic works and photographs are also protected by copyright. The expression “artistic works” refers to drawings, paintings, photographs, prints, mixed media works, plans, maps and logos. As with text works, copyright in an artistic work will not be infringed where the copy or communication is done with the express permission of the copyright owner; under the fair dealing, flexible dealing, educational and other exceptions; or under the Statutory Text and Artistic licence exception.
For example, copyright in artistic works are not infringed by communicating for classroom performance (for example, displaying artwork on an electronic whiteboard or in a virtual classroom), copying by hand or copying for exams.
Musical works are another area of copyright protection. There are a number of different aspects of music that have copyright implications. There can often be more than one copyright as we are dealing with:
- The musical work
- Words or lyrics to a song (literary work)
- Arrangement or adaptation to the work (musical and/or literary work)
- The typesetting and layout (published edition)
- The sound recording of a musical work.
- The performance and communication of the musical work (for example, at a concert, in the classroom, over the Internet, and so on).
In general, copyright in a musical work will not be infringed where the copying or communication of the musical work is done with the express permission of the copyright owner; under the fair dealing, flexible dealing exception (see below) or under a voluntary licence.
Furthermore, performing a musical work in class does not infringe copyright, nor does communicating a musical work for classroom performance. As noted earlier, copying musical works by hand, or for the purposes of an examination, is also deemed not to be a copyright infringement.
The advent of the Internet has presented copyright laws with new issues to be resolved. First, it is important to appreciate that material on the Internet is protected by copyright. Further, it is important to appreciate that a website is protected by copyright, but various pieces of content on that website may be owned by different people.
Commonly, a web page may contain various content including:
- A logo (artistic work)
- Text (literary work)
- Photographs or still images, drawings, charts, maps (artistic works)
- Moving images (audio-visual work or film)
- Music (musical work and sound recording)
- Other sounds (sound recordings)
- Site map (literary and artistic works)
- Links to other sites
- Conditions of access and use
- Website address or domain name.
Most websites specify what uses visitors can make of the material contained on the website. Users should search the site to see if there are any permissions given to use the material for educational purposes. Permissions are usually found on buttons or links called “Copyright”, “Disclaimer” or a file headed “Conditions of Use”.
There are a number of situations in which a school will have permission to copy material from the Internet without relying on a particular licence:
- Where the website says that educational copying is permitted.
- Where the website or document has the NEALS logo, or is otherwise stated to be NEALS content. This logo means that schools can always use the material for free.
- Where the teacher has received permission from the copyright owner to make the copy (for example, asking the person or organization listed within the “Contact Us” section of the website).
- If permission to make the copy is implied (for example, where the web page contains a printer icon with words such as “Printer-friendly format”). This suggests that a teacher can print one copy of the web page.
As touched upon earlier, the Act provides a series of exceptions which allow schools to use copyright material without permission. I will briefly outline some of these exceptions.
First, there is the ‘fair dealing’ exception. Under this exception, teachers and students can copy and communicate limited amounts of works if the use is fair and for the purpose of research, study, criticism, review, reporting the news, parody or satire.
Second, there is the ‘flexible dealing’ exception. Section 200AB of the Act was introduced in 2006 as a further means of attempting to balance the rights of the copyright owner with the right to use information. Section 200AB sets out a number of rules which teachers must use to decide whether a particular use of copyright material will be allowed.
There are five basic rules which apply to section 200AB:
- You must be using the copyright material for the purposes of giving educational instruction.
- Your use must be non-commercial.
- The circumstances of your use must be a special case (for example, not a broad use unrelated to your teaching purpose).
- Your use must not conflict with the normal exploitation of the copyright material you are using.
- Your use must not unreasonably prejudice the copyright owner.
However, note that this exception should only be used where other exceptions do not apply. For example, if you have a statutory licence to copy work, you are not permitted to use this section of the Act.
If the section does apply, it applies to all material whether in hard copy or digital format. This includes all the material discussed earlier in this article, including text-based works, artistic works, musical works and material on the Internet.
Section 200AB allows teachers to copy and communicate (for example, email or upload to the intranet) as well as make an adaptation of a work (for example, translate from one language to another, publish or perform the material in public). It is a wide-ranging section which has provided great flexibility to the education sector.
Mr. Alex Kohn is a partner in the Sydney law firm Makinson & d’Apice. Mr. Kohn has practised extensively in a wide range of school law matters since 1983. He advises the Catholic sector and the Department of Education. Contact Mr. Kohn on phone 02 9233 7788
Whilst every effort has been taken to ensure its accuracy, the information contained in this article is intended to be used as a general guide only and should not be interpreted or taken as being specific advice, legal or otherwise. The reader should seek professional advice of a suitably qualified practitioner before relying upon any of the information contained herein. This article and the opinions contained in it represent the opinions of the author and do not necessarily represent the views or opinions of Australian Media Group Pty Ltd or any advertiser or other
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