Australian Educators: Repeal the Education Statutory License, Expand Fair Dealing

The Australian Copyright Advisory Group Schools (CAG Schools), an organization representing over 9000 schools and Australia’s 3.5 million schools students urges the repeal of the Education Statutory License and relying on a flexible fair use/fair dealing regime in its stead. This position is part of the CAG School’s submission to the Australian Law Reform Commission who is currently reviewing Australia’s copyright laws. In its submission, the CAG Schools highlights several shortcomings of current Australian copyright laws as applied to education.

UPDATE (Dec. 10, 2012, at 5:33 pm): Universities Australia make similar points in their ALRC submission.

The CAG Schools argues that the statutory licences are broken and must be repealed. It notes that the internet has completely changed the way teaching and learning happens in Australian schools. The new Australian Curriculum is solely available online and teachers no longer just stand at the front of a class and teach. Instead, innovations such as ‘flipped classrooms’ let students study a topic online at home and come to school to do practical work with the teacher as a coach or facilitator. Unfortunately, while governments, parents and students expect Australian schools to use new technologies, Australia’s copyright laws penalize schools if they do. For example:

The statutory licence applies to all copies and communications made in schools, no matter how minor or incidental. Showing material in class using an interactive whiteboard can involve up to four times as many remunerable activities than printing a copy for each student.
The default provisions of the statutory licences mean that schools pay millions of dollars in public funds each year just to use materials that are freely available on the internet.
Australian schools already pay significantly more copyright fees than in equivalent countries:
- Australian schools pay over 14 times more in copyright fees per student than schools in New Zealand.
- 65% of pages coped from works in Australian schools in 2010 would have been free to use in the United States and Canada.

The CAG Schools maintains that Australia needs more flexible copyright laws. More specifically, it recommends that Australia introduce a flexible copyright exception similar to the United States’ fair use provision or Canada’s fair dealing and other exceptions. It maintains that this will future proof its Copyright Act for new digital uses and ensure that fair uses of copyright materials are permitted in Australian schools.

The Australian situation stands in stark contrast to the current state of affairs in Canada. It demonstrates the reality that collective societies such as Access Copyright would like to impose on the education system and that the Supreme Court and Parliament have wisely rejected.

The educational statutory license is largely a fallout of the Australian High Court decision in University of NSW v. Moorhouse, which held that the university was liable for authorizing copyright infringement when it allowed individuals to use photocopiers installed in the library. Following that decision, the Australian Copyright Act was amended and introduced an educational statutory license, which is administered collectively.

Moorhouse, was a test case, the facts of which highly resemble those of the 2004 landmark CCH v. LSUC case. Indeed, it was one of the primary cases that the plaintiff-publishers and Access Copyright relied on in CCH. The Supreme Court, however, declined to follow Moorhouse. Not only it viewed Moorhouse as “inconsistent with previous Canadian and British approaches to this issue [of authorization]”, the Court specifically opined that “the Moorhouse approach to authorization shifts the balance in copyright too far in favour of the owner’s rights and unnecessarily interferes with the proper use of copyrighted works for the good of society as a whole.”

The Supreme Court of Canada’s rejection of Moorhouse continued with the Court different approach to fair dealing in CCH and in the cases decided this year. The CAG School’s submission explains that the existence of the statutory licence has been relied on by the Copyright Licensing Agency not only to require schools to pay for copying that they do on behalf of students and/or for distribution to students (including orphan works and freely available internet content), but also to argue that fair dealing copying by students should be treated as remunerable under the statutory licence and paid for by schools, when it is done at the direction of a teacher. This view, of course, was the same view of Access Copyright, which the Copyright Board and the Federal Court of Appeals endorsed, but the Supreme Court of Canada wisely rejected.

As the submission explains, this view “leads to the unusual policy outcome that if a student decides to copy a small extract of a work as part of their studies, that use would be covered by the fair dealing exception for research or study. However, if a teacher asks that student to copy the same material for a classroom or homework exercise, that copy is treated as remunerable under Part VB.” This is exactly the outcome that the Supreme Court of Canada averted. Not surprisingly, the CGA Schools contrasts this situation with to that in Canada, and quotes the following paragraph from Justice Abella’s decision in Alberta (Education) v. Access Copyright:

In the case before us, however, there is no such separate purpose on the part of the teacher. Teachers have no ulterior motive when providing copies to students. Nor can teachers be characterized as having the completely separate purpose of “instruction”; they are there to facilitate the students’ research and private study. It seems to me to be axiomatic that most students lack the expertise to find or request the materials required for their own research and private study, and rely on the guidance of their teachers. They study what they are told to study, and the teacher’s purpose in providing copies is to enable the students to have the material they need for the purpose of studying. The teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study. Instruction and research/private study are, in the school context, tautological.

The rulings of the Supreme Court of Canada inspire other arguments made by the CGA Schools. For example, it explains how “the requirements of the statutory licence to record in a survey (and potentially pay for) every technological copy and communication involved in teaching simply do not reflect the realities of modern education in a digital age.” The submission relies on the Court’s ruling about technological neutrality in ESA v. SOCAN to show how “At the same time as schools are being encouraged to adopt the benefits of broadband and convergent technologies, the statutory licences provide a direct financial and administrative disincentive to do so.”

This of course, would not happen, if Canada ruled the world.