Importance of Copyright in Academia - Essay Example

Running Head: Copyright and Education Copyright and Education Name Course Date Introduction In educational settings, students and instructors have to build upon the ideas of others. The ideas needed to complete academic work are usually copyrighted thus copyright infringement issues arise frequently in academia. The issue of copyright infringement in academia is closely related to the issues of plagiarism. Plagiarism is an ethical issue which deals with the reproduction and copying of other people’s ideas and passing them as your own. In contrast, The Copyright Act (1968) cth considers copyright a legal issue which grants copyright owner exclusive rights to publish, perform, reproduce or communicate their original publications, literary works, dramatic or musical works1. However, copyright protection is only granted for a limited period of time. During this period, copyright owners have the authority to prevent others from using or reproducing their creative work. This paper starts by noting that Copyright law has many implications for educational settings. In such settings, it is interpreted along the dimension of what faculty can or can’t do with copyrighted material. In some instances, copyright law prevents students and instructors from placing course material online, creating course packs or scanning academic journals. Secondly, the paper discusses the copyright’s Act response to the constriction on use of copyrighted work caused by granting copyright owners exclusive rights to their work. The exceptions for research, review and criticism are particularly useful in educational settings. Thirdly, the paper discusses how educational institutions are able to use compulsory licensing schemes to access and use copyrighted work for academic proposes. The paper also notes the exceptions granted for educational purposes are inadequate and leave school exposed to litigation for copyright infringement. It argues that Australia should design a fair dealing exception for educational purposes or allow fair use for educational purposes.  Importance of Copyright in Academia The granting of copyright allows authors of literary work to earn a living from their creative work. Authors have control over who can access and use their work. By controlling access the author is able to charge for his literary work. It follows that the use of literary work in Academia should conform to copyright rules. Copying and reproduction of literary work is common in academia. Ideally, academic institutions are supposed to pay for this usage by obtaining licensing from the owners of the copyright. In academic research, both students and instructors have to build upon the ideas of others. The ideas needed to complete educational research are usually under copyright protection thus giving rise to copyright infringement issues. The issue of copyright infringement in academia is closely related to the issue of plagiarism. Plagiarism is an ethical issue which deals with the reproduction and copying of other people’s ideas and passing them as your own. However, unlike plagiarism which is basically the protection of idea, copyright is not interested with ideas. As seen in Donoghue v. Allied Newspapers Limited (1938) Ch 106, copyright is concerned with ideas that have been put in a tangible form2. As long as an author has put his work in a tangible form copyright protection in Australia applies immediately3. Tangible forms of work include recorded and written records. In contrast to plagiarism, the Copyright Act (1968) ss consider copyright a legal issue which grants copyright owner exclusive rights to publish, perform, reproduce or communicate their original publications, literary works, dramatic or musical works. However, the copyright protection is only granted for a limited period of time. Thus copyright owners have the authority to prevent others from using or reproducing their creative work. Copyright and Access to knowledge As set out by Section 35 of the Copyright Act, the grant of copyright to owners of literary work.4 Unfortunately, these rights limit access to literary material and can affect the ability of students gain knowledge5. If copyright owners are allowed exclusive control of the copyright they own they will constrict the free movement of ideas6. The 1975 landmark copyright case against the University of New South Wales shows how copyright might negatively affect the sharing of knowledge in educational institutions. In the University of NSW v Moorhouse (1975), the Australian Copyright Council (ACC) sued UNSW for authorizing Paul Brennan to photocopy page of a book by Frank Moorhouse7. The university did not ask for permission or inform Moorhouse they were making copies of section of his book. The High court ruled that the University had infringed the copyrights of Mr. Moorhouse. The results of this case show that educational institutions must be careful when using copyrighted material for educational purposes. In response, the Australian copyright law has designed exemptions where the person can use or copy an author’s work without it being considered copyright infringement. These exemptions to the exclusive copyrights provide an opportunity for learners in educational institutions to legally use and copy copyrighted material. Some of these exemptions are covered under the fair dealing provisions. In Australia, learners can use and to some extent copy previous copyrighted academic work for the purpose of research, study, criticism and review under fair dealings provisions. However, unlike the US fair use approach, the fair dealing is not an open ended exception to copyright laws. People who want to make use of copyrighted material in education have to show the purpose they want to be granted a fair dealing exception. Fair Dealing Fair dealing is copyright infringement concept that deals with various exceptions to copyright infringement. Fair dealing in Australia is not unlike fair use concept in the US, but in Australia fair usage of copyrighted work must fall within a range of specific purposes. Most of these purposes are related to the use of copyrighted material in various settings they include8; 1. Fair dealing for purpose of criticism or review. Section 41 the Act allows reviewers and critiques of copyrighted work to make fair use of section of a original copyrighted work9. 2. Fair dealing for purposes of study or research. It is widely accepted that for any progress to be made in many fields of research, research has to built upon existing knowledge. Therefore, Section 40 of the Copyright Act is designated to allow fair use of copyrighted work for researchers10. 3. Exception for purposes of news-reporting is also considered under Section 40 of the Copyright Act (1968)11. This exception allows for reporting of various aspects of the copyrighted material and may include the content of the copyright. The aim of these exemptions is to provide objective news by ensuring that copyrighted facts are not precluded. 4. Section 41A also allows fair dealing exemptions for the purpose of satire and parody12. 5. Section 43 also allows for non-infringing copyright during legal proceedings or in the process of giving legal professional advice13. Reliance on fair dealing exception is weakened by the absence of guidelines to determine what can be considered fair dealing14. Instead, fair dealing is a vale judgment that is determined by the presiding judge. However, educational institutions are required to provide the source and name of the author for all material that is copied. Educational institutions have been at the forefront of adhering to this requirement and most specify the source and name of the author of the copied materials. Most educational institutions are aware that copyright is automatic. Therefore, anytime thy copy images from the interest they remember to check for copyright permissions. In most educational institution the use of downloaded images in documents and presentation is required to conform to Australian copyright law. Most institution requires their students to acknowledge sources and give credit whenever preparing assignments or presentations. Compulsory licensing of copyrighted material Furthermore, compulsory licensing of copyrighted material allow for universities, schools and other institution to obtain licenses to use copyrighted material15. The license can either be issued by the copyright owner or by a government tribunal. The use of compulsory licensing is very useful to academic institutions which could otherwise be denied access to academic work which is relevant to their curricula Use of copyrighted text, image, voice and videos in educational institutions The copyright Act contains provisions which allow educational institutions to use copyrighted material without authorization from copyright owners. These provisions are contained in part VB of the Act which deals with permission to copy and communicate images, text and notated music16. Part VA also has provisions pertaining to the communication and copying of TV programs for educational purposes17. However, for educational institutions to qualify for the use of copyright without the owner’s authorization they have to be covered by a remuneration notice18. Institutions under a remuneration notice undertake to pay for uses of copyright they make. Copyright Agency Limited and Screenrights collect fees paid by educational institution for copyright owners under Part VB and Part VA respectively. Other provisions in Section 28 allow music and films to be broadcast in class19. Section 200AB allow for exceptions in special case or in flexible dealings20. For the purpose of copyright Act,’ Educational institutions” can be Universities, TAFE Colleges or Schools21. However, other institution of learning are can also be considered educational institutions under the act. However, for them to rely on the exceptions of the Act they need to follow an additional procedure22. Educational institution can obtain a Statutory Institution license to enable them make use of copyrighted material in learning. The Screenrights association also provides licenses for screening films. Part VB of the Copyright Act has provisions that set out how text, images and notated music can be used in educational institutions without copyright infringement. The first provision of Part VB or the “Hardcopy scheme” allows newspapers and books to be copied and communicated23. On the other hand, the “electronic use scheme” allows copying and communication of digital material24. Educational institutions are free to communicate these materials through email, the institution intranet and make them available online. However, only a reasonable portion of the work can be used in the two schemes; usually 10% or a chapter of the work25. The institution issues a specific notice incase of communication or reproduction of a digital copy. However any sale or use for purposes other than educational is considered copyright infringement. Part VA of the Act is concerned with use and communication of TV and Radio broadcast materials for educational purposes. Under the provisions of this section educational institution can copy and communicate TV and radio programs26. Under the provision of Part VA and entire program can be copied and recorded for use in education, regardless of whether the program is available for sale in DVD format27. Information pertaining to the copyrights of the material must accompany any broadcast or communication of recorded programs28. However, these provisions do not allow for copying of rented, borrowed or purchased DVDs. It also does not cover digital downloads and podcasts. Sale of copies made under the above circumstances is considered copyright infringement as with Part VB. Section 200AB also allows educational institution to copy and communicate copyrighted materials in special cases also regarded to as flexible dealing exception29. Exception can only apply if the circumstance is not covered by in other provisions of the copyright Act30. The special cases provision cannot apply to exceptions covered by Part VB and Part VA of the Copyright Act. Educational institutions can rely on Section 200AB if31: The circumstances it is used amount to special use; The case does not conflict with ordinary exploitation of the copyrighted material; It does not unreasonably prejudice the rights of the copyright owner; If no commercial gain or advantage is to be gained from the copying. Granting of exception in Section 200AB involves a complex analysis to decide whether it applies to a particular situation32. Therefore it is not ideal for educational institutions to rely ob the provision of this section to use and communicate copyrighted content. To comply with the provisions of Copyright Act all government schools are covered by several copyright licenses33. The AMCOS Schools Print Music License allows schools to photocopy print music. Secondly, the APRA|AMCOS/ARIA Schools Music Recordings and Access License allows for the copying/recording of copyrighted sound and music recordings. Thirdly, the APRA Schools Performance License allows for performance of copyrighted music outside the classroom. Other exceptions The Australian Copyright Act (1968) cth also deals with the fair usage of computer programs. Notably, computer programs are considered important tools in contemporary learning. Therefore, their treatment by copyright law is important to the process of learning. The Copyright Act permits use of computer programs for purposes of security and interoperability testing34. Ordinary use of copyright programs is also considering an exception. These exceptions are set out in Division 4A of the Act which allows students to use computer software in their work35. It also allows for study of computer programs without infringing on the copyright owner’s rights. The Australian Copyright Act (1968) cth in section 47B allows for reproduction of computer programs for study and normal use36. Section 47C allows users to keep back up copy of computer programs without infringing the copyrights for the programs37. The Copyright Act also contains other provisions that can allow educational institutions to use copyrighted content without paying copyright owners. Section 28, allow for music and films to be played and screened in classes38. Under this section, an educational institution can be able to stream non-infringing content directly into classes from websites. On the other hand, Section 200(1)(a) allows for the copying of copyrighted content in by hand e.g on whiteboards39. Section 200(1)(b) allows exceptions for copying in connection to exams40. Notably, section 135ZMB and 135ZG allow students and educational institutions to copy “insubstantial portions’ of copyrighted work41. Usually the insubstantial portions are considered one per cent or one page of the copyrighted work. Are the Exception for educational purposes Adequate According to Sookman and Glover, Australia may need an open-ended fair use exception to ensure that educational institution make the most use of copyrighted materials42. Alternatively, a fair dealing exception for educational purposes should be incorporated into Australian Copyright law. Changing technologies and teaching practices should be given utmost consideration while developing such an exception. However, educational institutions in Australia still have to work with the inadequate provisions of the current copyright Act as discussed in the previous section. The fair dealing exceptions should contain a specific provision to allow copying by educational institution43. Section 103C and 40 of the act whichs deal with copying for study and research only cover private research and do not extend to educational institutions. As seen in Haines v Copyright Agency Ltd (1982) 64 FLR 185, Australia copyright law considers copying for teaching purposes as distinct from copying for study or research44. In De Garis v Neville Jeffress Pidler Pty Ltd (1990) 95 ALR 625, it was ruled that the exception could only be relied upon by the person who is actually doing the research. The De Garis case relied on a narrow interpretation which prevents third parties that are involved in the research to reproduce or copy work used in the research45. These provisions mean that academic institutions cannot engage in copying and reproduction of copyrighted work for research reasons46. Conclusion The Australian copyright law has tried to balance the need to give scholars access to quality copyrighted work and the need to protect the rights of copyright owners. However, copyright law in essence is a constriction on the freedom of sharing and securing knowledge in educational institutions. It prevents both students and instructors from engaging in activities such as photocopying and scanning of books and journals. As seen in the University of New South Wales case an unauthorized copying of an author’s original work even in an educational setting is considered copyright infringement. By simply copying some sections of the book by Moorhouse the university was fund liable for copyright infringement. Unfortunately, circumstances where copying and reproduction for educational purposes has to take palace are many. To prevent educational institutions from constantly infringing on copyright, the Copyright Act (1968) cth contains provisions that enable students and instructors to copy and reproduce copyright material without infringing copyright. The fair dealing exception contains specific instances where copying and reproduction of copyrighted material is judged not to be copyright infringement. The criticism and review exception and the exception targeted at copying for study or research are the most relevant to educational institutions. These exemptions to exclusive copyrights provide an opportunity for learners in educational institutions to legally use and copy copyrighted material. In Australia, learners can use and to some extent copy previous copyrighted academic work for the purpose of research, study, criticism and review. However, unlike the US, fair dealing is not an open ended exception to copyright rights. Instead, People who want to make use of copyrighted material in education have to show the purpose of being granted a fair dealing exception. As regard computer Software, the Australian Copyright Act allows for reproduction of computer programs for study and normal use. Furthermore, users can keep back up copy of computer programs without infringing the copyrights for the programs. These provisions acknowledge the importance of computer programs in the contemporary educational setting. Compulsory licensing allows educational institutions to copy and reproduce copyrighted works more extensively. Furthermore, compulsory licensing of copyrighted material allow for universities, schools and other institution to obtain licenses to use copyrighted material. The license can either be issued by the copyright owner or by a government tribunal. The use of compulsory licensing is very useful to academic institutions other exceptions like those that allow for recording of full radio or TV programs are also valuable to learners and represent a situation where copyright law allow educational institutions to get the most benefit from copyrighted material. Other exemption should show such a high flexibility to educational settings as educational institutions need to make extensive use of copyrighted materials. Developing a fair dealing exception for educational purposes would allow educational institutions to gain the most value from copyrighted materials. Bibliography A. Articles/Book/Reports Australian Copyright Council, Education: Copyright Basics; Information Sheet G048v16 (August 2012). Australian Copyright Council, Exceptions to copyright; Information Sheet G121v01 (July 2012). Carroll, M. W, ‘Fixing fair use. ‘(2006) 86 NCL Rev 85, 1087 Moore, C. ‘Creative choices: changes to Australian copyright law and the future of the public domain,’ (2005) 114 Media International Australia, Incorporating Culture & Policy, 71. O'Brien, D. S., & Fitzgerald, B. F, “Mashups, remixes and copyright law,’ (2006) 9 Internet Law Bulletin 2, 17-19. Rimmer, M, ‘Canadian rhapsody: Copyright law and research libraries, ‘ (2004) 35 Australian Academic & Research Libraries 3, 193-213. Seng, D, ‘WIPO study on the copyright exceptions for the benefit of educational activities for Asia and Australia’, 2009 13 WIPO 7. Sookman, B., & Glover, D, ‘Why Canada should not adopt fair use: A joint submission to the copyright consultations, ‘(2009) 2 Osgoode Hall Review of Law and Policy 2, 139-168. B. Cases Copyright Act (1968) cth C. Legislation Donoghue v. Allied Newspapers Limited (1938) Ch 106 Haines v Copyright Agency Ltd (1982) 64 FLR 185 De Garis v Neville Jeffress Pidler Pty Ltd (1990) 95 ALR 625, Read More