Schools Supplementary Submission to ALRC

May 1, 2013

The school sector’s supplementary submission to the Australian Law Reform Commission (ALRC) was published on the ALRC’s website today.

Background on ALRC inquiry here.

The school sector’s supplementary submission is a largely a response to the supplementary submission from Copyright Agency | Viscopy, and addresses three issues:

  1. rationale for the school sector’s call for repeal of the statutory licence for education
  2. monitoring of usage that does not ‘or should not’ be ‘remunerable’
  3. application of copyright exceptions to uses that are licensed.

SCHOOL SECTOR’S CALL FOR REPEAL OF STATUTORY LICENCE

In its initial submission, the school sector sought two major changes:

  1. repeal of the statutory licence for education
  2. a new ‘flexible’ exception covering, among other things, educational use of content

In the supplementary submission, the school sector clarifies that the first change is not contingent upon the second. Its view is that the first change alone would provide benefits to the education sector.

EFFECT ON LICENSING FEES

The school sector acknowledges that the repeal of the statutory licence for education ‘may result in some reduction in the amount currently paid by schools for copying and communication’. It says that the statutory licence ‘require[s] remuneration for uses that elsewhere in the world would be considered “fair”‘ (that is, free under a ‘fair dealing’ or ‘fair use’ exception).

The school sector also says that if the Australian publishing industry requires support, it should be through means other than the statutory licence.

EFFICIENCY OF THE STATUTORY LICENCE

The school sector argues that the statutory licence for education is inefficient because, under current arrangements, schools that participate in surveys record all usage, and Copyright Agency’s processes identify which recorded uses are ‘counted’ to estimate the extent of usage by the sector as a whole under the licence.

In response, a few things need to be borne in mind:

  1. voluntary licensing involves similar methods of recording usage as statutory licensing
  2. the survey methodology, and how survey data is processed, are agreed between Copyright Agency and the school sector
  3. the current arrangements are intended to make it easier for the teachers to complete the surveys, as in general they lack the expertise to identify whether or not a use is covered by the statutory licence
  4. recording all usage is not an inherent aspect of the educational statutory licence (e.g. universities record their usage differently)
  5. each year, less than 3% of schools record their usage (2% record photocopying for a term, and 1% record digital usage for four weeks)
  6. recording usage via manual surveys of samples of licensees will soon be replaced by automated data capture processes

EXCEPTIONS FOR USES ARE THAT ARE ALLOWED UNDER LICENCE

The school sector says that it accepts that ‘the availability of a licence on reasonable terms may be relevant to an assessment of whether a particular use may be considered “fair”‘. It rejects, however, the view that an exception should never apply to a use that a person can make under licence. It refers to court decisions in Canada and the US in support of its position.

It also refers to the UK, but appears to have misunderstood the position there. Under the current law in the UK, some uses of content by the education sector are allowed without permission or payment, as they are under Australian law. Other uses are licensed (e.g. by Copyright Licensing Agency). In its December 2012 report Modernising Copyright, the UK Intellectual Property Office recommended that some further ‘minor’ uses be allowed, such as display of an extract of text on an interactive whiteboard, but that the framework for licensing ‘significant’ uses of content remain, to avoid causing ‘unreasonable losses to rights holders’, and damaging incentives to creators.

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