Delia Browne – National Copyright Director – copyright policy and advice for all Australian Schools and TAFEs – 3.5m school students, 1m TAFE students.First - quick snapshot of education exceptions here in Australia, to set the scene for global reviewVarious free rights to use content – main ones are:In class performancePlaying sound recordingsFlexible fair dealing (s200AB) – s200AB introduced in 2006 to give flexible usage rights to education sector. Doesn’t work well at all. A number of problems I'll touch on later. In practice offers only limited rights to deal with films and sound recordings. Efforts to expand these free rights to use are part of the law reform agenda for 2012. Various other rights cover narrow and specific uses – eg educational web caching, in-class reproduction, teachers have limited fair dealing rightsStudents also have fair dealing rightsMore rights to use that we pay forStatutory licences – print & artistic works, TV/radio broadcastsVoluntary licences – music licences, direct (ie non-blanket) licences
Many issues for education in the current regime. Not topic of this talk but there's a quick shortlist – sets context for looking at overseas problems and solutions.For Aus education, problems include:Costs – increasing, statutory licences. $75.1m just for the statutory licences, just for schools, in 2011. (in 2001, those fees were $29m)Changing markets – rise of digital content, decreasing importance of traditional copying and models – eg hardcopying, booksTPMs – no right to circumvent TPMs in order to exercise educational copying rights huge problem! Frustrates purpose of exceptions - eg s200AB Copyright and contract – unclear whether onerous contractual terms can restrict schools from relying on their statutory copying rights. Also an issue in s200AB – some argue that as soon as there's an offer of a commercial licence on the table, no matter what the terms, it shuts down s200AB – given requirement that any 'flexible fair dealing' not conflict with normal exploitation of workInefficiencies – high admin burden, survey and processing inefficiencies, disconnect btw schools (users) and administrators (who pay) Limitations and gaps in rights – changing technology, changing activities, means many gaps in rights, artificially hampering reasonable educational uses (eg s28, limitations in Pt VA, Pt VB)
Looking first at the UK.Looking first at their current rights for education.Current UK free education exceptions are relatively narrow. And note they can be (and are) overridden if a licensing scheme is available.And note don't apply to distance education – these are 20th century exceptions only permitting educational uses when students and teachers are present together on school premises.Section 36 Copyright, Designs and Patents Act (CDPA)S 35 CDPA
Last couple of years have seen big movements on UK front.Hargreaves report in 2011.Followed by current IPO consultation.IPO consultation acknowledges that UK educational and other exceptions are fairly narrow, and seriously considers options such as fair use. [see quote]
Options put forward for consideration:1 - A “fair dealing for schools” exception that would permit up to five per cent per quarter (or more in some cases) of a work to be copied for free and distributed/communicated to students; 2 - Permitting schools to transmit works and broadcasts, within the free education exception limits, to distance students
3 - Permitting schools to record broadcasts, without payment, for viewing by students at a more convenient time, with licence fees only payable where the school wanted to retain a copy of the broadcast for an extended period; 4 - A restriction on copyright owners relying on contracts to prevent schools from taking advantage of the educational use exceptions. Conclusion: Very interesting time in UK. Interesting to see serious consideration given to broad, flexible options. EU Copyright Directive presents a potential barrier to any such exception, but tone of the debate in UK is that that's not the end of the matter. Worth considering just what can and can't be done despite the Directive , and indeed whether the Directive should be changed.
Turning to Canada.Canada currently also has relatively narrow exceptions for education Some Canadian exceptions are for free, some require payment of a fee. Canada's free exceptions: Section 29(4) permits schools to reproduce, translate or perform works and other subject matter for purposes of instruction (by means of manual copies made on boards, flip charts or similar surfaces, or by means of overhead projectors or similar devices) and for examinations, provided that these acts are done on the premises of the educational institution. The exception does not apply if the works can be purchased in a form appropriate for the intended purpose. Nor does it apply to any kind of digital use.Section 29(5) permits live performances of works by students, performance of sound recordings (and works embodied in them) and of telecommunicated works are also allowed provided that they are done for educational or training purposes, on the premises and before an audience consisting primarily of instructors, students and persons related to the institution.
The following remunerable exceptions/limitations also apply: Ss 29(6) and (7) permits schools to make a recording of certain off-air broadcasts (including news and news commentaries, but excluding documentaries) and to perform this on the premises for educational or training purposes within a year of the recording. Schools are also permitted to record other broadcast works, and have 30 days in which to decide whether to keep the copy for educational or training purposes (subject to paying a royalty to the relevant rights organisation) or to destroy it. Section 30.3 permits copying of works in printed form by means of photocopiers located on the premises of an educational institution or library. This exception only applies if the school etc has a remuneration agreement in place with the relevant rights organisation. It does not apply to digital copying.
Canada has been wrestling with copyright reform for many years through three different parliaments now. Bill C-11 is currently before Parliament (actually, before Parliamentary Committee), proposes a range of substantial changes to Canadian copyright law.In particular for education, proposes three significant changes:fair dealing for education, parody or satire (s29)non-commercial UGC (s29.21)internet materials (s30.04)
Turning to the prospect of fair dealing for education... If passed, this amendment will permit schools to make multiple copies, within fair dealing limits, for distribution to students. This is the proposed wording (note also proposing introduction of parody and satire exception).
Bill C-11 also includes a proposed "internet exception"– that would permit schools to copy and communicate works that are freely available on the internet, provided that the copyright owner has not marked the work in such a way as to indicate that he/she wants to be paid for use of the work. Quite topical, as copying from the internet is a serious issue for the education sector here. Particularly because the default Australian position is that educational institutions pay for every copyright use of any copyright material sourced from the internet.
Quite topical, as copying from the internet is a serious issue for the education sector here. Particularly because the default Australian position is that educational institutions pay for every copyright use of any copyright material sourced from the internet.So the schools sector has proposed a similar exception here.
Speakers included Dutch government representatives, academic BerntHugenholtz, Google and other industry reps, and others.Very interesting paper by Hugenholtz and Senftleben presented and available online – 'Fair Use in Europe. In Search of Flexibilities '(http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1959554)The Dutch government clearly indicated its support for: increased flexibility in copyright exceptions –the current "closed list" of specific exceptions in the EU Copyright Directive may simply not suffice stricter supervision of collective rights management organisations, more social accountability and more transparency on money flows a regime for orphan works accessWhile just a one day conference, it was a clear and strong statement of Government intentions – and of a national willingness to revisit the EU Copyright Directive, which many see as preventing any effort to introduce more flexible exceptions in the EU. It will be interesting to see how the Dutch government progresses this.
From the consultation paper published several weeks ago, we see:importance of protecting innovation in education: "Given that a great deal of education policy is directed to innovation, there are good innovation reasons to include “education” in the research or private study” exceptions." (at p69) recognition of Canadian "fair dealing" proposal suggestion that Ireland take the same approach: include 'education' in their fair dealing provision.-
From the consultation paper published several weeks ago, we see:Fair use given significant consideration (unsurprisingly, given terms of reference)No clear position reached – the Review wants to consider it further, inviting more submissionsInterestingly, noting that UK and Netherlands are both active, considering whether Ireland should join them in lobbying at the EU levelSuggests slowly growing momentum for change (or at least discussion of change) in EU.EU copyright directive is not the end of the story.
WIPO has been active on the issue – Standing Commitee on Copyright and Related Rights meeting once or twice a year. Recent activity eg includes: Questionnaire on Limitations and Exceptions (first issued 2008, final report tabled 2010)2009 - Studies on Copyright Exceptions for Education around the world (see eg report on Asia and Australia)On other fronts, Commonwealth of Learning and UNESCO programs re OER
Trend toward flexible, tech neutral exceptions for education.Appears to be growing recognition of need to re-visit the 'balance of rights' public policy importance of securing educational access rights Link between 'high quality education' and 'access to content'appropriate free access – see next slide
Quote from UK IPO consultation which highlights many of the issues around educational access:appropriate free access =whether or not there's a market should be irrelevant exceptions that are subject to a remunerable licence are "not really true exceptions" illogical that education should have to pay for the right to do acts that individuals are permitted to do freely by law – such as the exceptions here, or time/format shifting, for example.
So lots of close scrutiny and consideration of education and copyright around the world.ALRC review will provide Australia's chance to visit many of these issues too. Expecting opportunity for a broad ranging enquiry, looking at many options. Global trends suggest this a timely occasion to re-visit broad flexible exceptions – perhaps fair use? Fair dealing for education?Education was pleased and encouraged to see new flexibility added to the Act in 2006, but unfortunately the formulation of s200AB has meant its utility and flexibility has been limited and problematic: including 3-step test makes it very difficult to advise on – little if any consensus at the national or international level, and developing jurisprudence out of the WTO makes it even more difficult uncertainty around the interplay of contract and s200AB suggests s200AB might be "shut down" by contract further limited because subordinate to the statutory licences – so almost no room for flexible dealings in re print and artistic works or broadcasts, for example.s200AB – problematic, needs revisiting.
And it's not just about exceptions themselves. Global debate shows the critical importance of related issues, and that any meaningful changes to exceptions requires addressing those related issues. For example: TPMs – been a huge problem for education here – have rights to use content for education that simply cannot be accessed, due to lack of an appropriate "education exception" permitting circumvention of applicable aTPMs. [ Eg stories of compiling DVD extracts for classroom instruction, under s200AB]. In Canada, we see debate around TPMs forming a huge part of the ongoing discussion around Bill C-11 and the proposed new rights there copyright and contract – again been an ongoing issue for education here – constant uncertainty about the position, increasing situations where it's not clear s200AB can be relied upon. In the UK, we see a long history of contract being clearly allowed to override educational exceptions, and government has noted this has effectively deprived the sector of rights they were intended to have. It's being addressed there, and we hope to see it addressed here.A number of other issues but no time to discuss here – eg the role of Copyright Tribunals and similar around the world, orphan works, the role for registration/formalities, etc.Overall, very interesting time for copyright in education – lots happening around the world and no doubt much more over next few years. Looking forward to Australia participating in that debate.
Global agenda - education Delia Browne National Copyright Director Standing Council on Education and Early Childhoodhttp://www.flickr.com/photos/opensourceway/4378920267/ !
Slides available @http://www.slideshare.net/nationalcopyrightunit/ This work is licensed under the CC Attribution-ShareAlike 3.0 Australia License (unless otherwise noted) http://creativecommons.org/licenses/by-sa/3.0/au/
Australian landscape• limited rights to use content for free • In-class performance (and communication) • Playing sound recordings • Flexible fair dealings (pale imitation of fair use)• more rights to use content if we pay • statutory licences • voluntary licences 4
Current issues• High costs $75 million in 2011, just for statutory licences• Changing markets• TPMs• Copyright and contract• Inefficiencies• Limitations and gaps in rights 5
Global landscape• UK• Canada• Ireland• Netherlands• International 7
UK – current rights• text and image copying of no more than 1% of a work per quarter doesnt apply if a licensing scheme covers the relevant uses• can record off-air broadcasts for later showing to students doesnt apply if a licensing scheme covers the relevant uses• Exceptions only apply when students physically located at a school etc 8
UK – law reform• May 2011 – Hargreaves Report published• Nov 2011 – IPO publishes consultation paper Notes narrow educational exceptions... "Other countries, such as the United States, permit the copying of larger extracts of copyright works, and there are opportunities for us to do the same" 9
UK – law reform• Nov 2011 – IPO puts forward various options for comment: • “fair dealing for schools” - 5% per quarter (sometimes more) of a work to be copied and communicated, for free • distance education - permitting schools to transmit works and broadcasts, within the free education exception limits 10
UK – law reform• Nov 2011 – IPO puts forward various options for comment: • broadcasts - permitting schools to record broadcasts, without payment, for viewing by students at a more convenient time (fees payable if retained for an extended period) • contract - preventing contract overriding educational use exceptions 11
Canada• Current exceptions include – for free: • copying works (by hand) for the purpose of instruction, on premises (s29(4)) • Performance of works, sound recordings and telecommunicated works, for educational or training purposes, on premises, to staff/students (s29(5)) 12
Canada• Current exceptions include – for remuneration: • record and retain broadcasts, for educational and training purposes (s29(6)) • Photocopying on premises, if a remuneration agreement is in place (29(7)) 13
Canada• Bill C-11 – currently before Parliament• Introduces new exceptions for: − fair dealing for education, parody or satire (s29) − non-commercial UGC (s29.21) − internet materials (s30.04) 14
Canada – fair dealing• Bill C-11: • S29 - Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright. 15
Canada - internet• Bill C-11, s29.21: • Educational institution can copy, reproduce, perform a work or other subject-matter that is available through the Internet for educational or training purposes • Unless: − requires circumventing TPMs − clear notice (not just (c)) forbidding use − source is an infringing copy 16
(Australia – internet)• Education proposes a similar "internet exception" for the Australian Act: • Would exempt copying/printing/saving of web pages for education, unless owners clearly indicate intent to be remunerated • No more paying to copy tourist maps, company information materials, manuals, amateur web content, unless author has an expectation of remuneration 17
Netherlands• 10 Feb 2012 – Ministry of Security and Justice hosts conference: "Towards flexible copyright?"• Dutch government wants to explore: "a more flexible system of copyright exceptions that would also work in a European context" 18
Netherlands• Government position on the day: − ...theres a risk that the [closed] list of exceptions will be unable to keep pace with reality... − ...work thats been made available should be used as much as possible... − ... we need stricter supervision of collective rights management organisations, more social accountability and more transparency on money flows... 19
Ireland• 9 May 11 – Copyright Review Committee established call for submissions -> 100+ subs received• 29 Feb 12 – Consultation paper released• 5 Mar 12 – Online questionnaire released• 24 Mar 12 – public meeting scheduled• 13 Apr 12 – submissions close 20
IrelandTerms of reference (9 May 2011): 1. identify barriers to innovation 2. recommend re possible solutions 3. Examine "fair use" to see if appropriate in an Irish/EU context 4. if necessary, make recommendations for changes to the EU Directives that will eliminate the barriers 21
Ireland – fair dealing?• Consultation paper (29 Feb 12): • notes the Canadian fair dealing proposal • Suggests (for discussion) a similar amendment for Ireland 22
Ireland – fair use?• Consultation paper (29 Feb 12): • "we are, as yet, unconvinced by the arguments on both sides of the fair use debate" ([10.5]) • Invites further submissions • "Should we join with either UK or Netherlands in lobbying at EU level?" 23
Multinational• WIPO • Standing Committee on Copyright and Related Rights - July 2011• UNESCO – Commonwealth of Learning • Dec 2011 – global survey (including all Aus states) of uptake of OER in Australian education 24
Global trends• Serious consideration of broad, flexible exceptions for education: • UK, Canada, Ireland, Netherlands• Growing global recognition of public policy interest in securing appropriate free access to content 25
Global trends..these exceptions are not really true exceptions in that for the most part they require educational establishments to pay license fees. This means educational establishments pay for the right to do acts that individuals are permitted to do freely by law – such as recording television broadcasts for later viewing, and copying works for study. UK IPO Consultation – Impact Assessment – Extending Copyright Exceptions for Educational Use, p10 26
Where to from here?• ALRC review: • opportunity for broad ranging enquiry in Australia too? • fair use? fair dealing for education? s200AB has not delivered 27
Where to from here?• Need to address related key issues: • TPMs • copyright and contract • […and others…]• Busy time for copyright and education, around the world• Looking forward to Australia joining the debate 28