Update on Changes to the Copyright Act and Learning Content Management Systems Alison Davis National Copyright Manager Schools Resourcing Taskforce, MCEETYA

2 Session Outline Introduction to Smart Copying Copyright Amendments 2006 – Educational Exceptions Learning Content Management Systems Smart Copying Initiatives

3 Copyright Advisory Group (CAG) Representatives from each State and Territory Education Department, CEC, AIS and DEST National body responsible for copyright policy and administration for Australian schools and TAFEs on behalf of MCEETYA (Ministerial Council on Education, Employment, Training & Youth Affairs) Created to ensure coordination and cooperation between the states and territories and government and non- government sectors on the national issue of copyright.

4 Smart Copying Key objectives are: reduce copyright costs; and introduce better copyright management practices in schools

5 Copyright Costs on the Rise

6 Copyright Amendments 2006 Educational provisions: –s200AB – flexible fair dealing - non-commercial uses for purposes of giving educational instruction –s28 (5), (6), (7) – Communications in and to the classroom –s200AAA – proxy caching –Extension of Part VA to communications of free-to-air broadcasts eg webcasts and podcasts

7 New s200AB Flexible Fair Dealing Q.What rules apply to s200AB? A.There are six rules that apply to s200AB: 1.Use must be for purposes of giving educational instruction 2.Use must be non-commercial 3.Must be a “special case” 4.Must not conflict with “normal exploitation” of copyright material by copyright owner 5.Use must not “unreasonably prejudice” copyright owner 6.Must not remove/disable an Access Technological Protection Measure

8 New s200AB Flexible Fair Dealing Q.How do I know if my use is “for the purposes of educational instruction”? A. This covers using the material for: –Teaching (including remote teaching) –Preparation for teaching –Preparing materials for students to use for homework, research tasks or other uses in connection with teaching

9 New s200AB Flexible Fair Dealing Q.How do I know if my use is “non-commercial”? A.This means that you, your class or school cannot: make a profit or obtain some other commercial advantage from the use. You can, however, make a cost recovery charge Eg if you copy material onto a disc you can charge students to cover the cost of their disc.

10 New s200AB Flexible Fair Dealing Q.How do I know if my use is a “special case”? A.Your use must be narrow in both size & scope. Eg Using specified copyright material for a particular classroom activity is narrow – more likely to be a “special case”. Copying a large amount of material “just in case” with no specific plan for its use in the classroom unlikely to be a “special case”.

11 New s200AB Flexible Fair Dealing Q.How do I know if my use “conflicts with the normal exploitation of the copyright material” I want to use? A. Your use will “conflict with the normal exploitation of the copyright material” where a copy of the material is available for purchase.

12 New s200AB Flexible Fair Dealing Q.How do I know if my use will unreasonably prejudice the copyright owner? A.This will occur if your use hurts the copyright owner’s interests – economic or non-economic Eg. If you expose the copyright owners material to a high risk of piracy eg by uploading a music file to the Internet

13 Exception? Statutory licence? Educational institution? Teaching purposes? Commercial advantage/ profit? Special case? Conflict with normal exploitation? Unreasonably prejudice? Lawfully acquired? Section 200AB in practice

14 New s200AB Flexible Dealing 8 new common uses by schools permitted Important to Note: All examples assume that source copy of material has been legitimately acquired by school 1. Make captioned versions of films for hearing impaired student when not possible to buy captioned version 2. Convert 8-track or VHS tapes to DVD when not possible to buy DVD of that sound recording or film

15 New s200AB Flexible Dealing 8 new common uses by schools permitted 3.Compile short extracts of audio-visual material for use in class (eg making DVD of short extracts of several films for a Film Studies or English class) when not possible to purchase similar teaching resource 4.Convert a film on Video to digital file format when not possible to buy a digital version of the film (note Anti- Circumvention provisions) 5.Include short extracts of music in PowerPoint teaching aids

16 New s200AB Flexible Dealing 8 new common uses by schools permitted 6.Translate an extract of an Australian novel into French for a French language class 7.Stage a performance of a play from the drama syllabus for family & friends to provide drama students with practice for a performance assessment 8. Prepare an arrangement of a musical work to perform in a music class

17 Amendments to s28 Section 28 a ‘free’ exception to enable copyright material to be performed in class, or otherwise in presence of audience as part of educational instruction New subsections (5), (6) and (7) extend s28 to communications made to facilitate performance of copyright material to students in class or online

18 5 Things You Can Now Do Under s28 Use an electronic reticulation system to play a video or DVD to a class Display or project material to the classroom via PowerPoint or interactive whiteboard Communicate material to external students using virtual classroom software Play a film from the school intranet to a class Recite a poem to a virtual class using Skype

19 s28,s200AB,Part VA &VB Overlap Making the initial digital copy: Print and/or artistic works – under Part VB (subject to copying limits) TV or radio broadcast – under Part VA DVD/Video (not a broadcast) – maybe under s200 AB if it is not commercially available

20 s28,s200AB,Part VA &VB Overlap If you want to place material on a intranet to use in class and you take it down at the end of a lesson, you can rely on section 28 (and its use is free) If you want to store it on an intranet beyond the end of a lesson, you might be able to rely on either s200AB or the Part VA or VB statutory licence

21 New s200AAA Proxy Caching Covers school networks (incl. provision of Internet access) Temporary copies made automatically by network in response to actions by users Helps make internet access more efficient Confirmed - –not a copyright infringement –not a “communication” by user –not remunerable under Part VB

22 New s22(6A)Reading from the Internet “Tell Students to View” issue Student reading from Internet or clicking on hyperlink to access webpage Not a “communication” by user Not “remunerable” under Part VB

23 Extended Part VA – Webcasts and Podcasts Part VA (Statutory Broadcast Licence) extended to include podcasts & webcasts which have originated as free to air broadcasts Doesn’t cover podcasts/webcasts: –which have not been broadcast –from Pay TV sources Observe standard marking/record keeping requirements

24 Copyright Protection Measures Law now distinguishes between: Access Control Technological Protection Measures (ATPM) –Used by copyright owners to control access to content –Eg password control systems, fee for access, time access controls, encryption systems which require authorised players to use content Copy Control Technological Protection Measures (CTPM) –Used to prevent, inhibit, restrict copying or communicating the copyright content –Eg software locks that prevent copying, downloading, encryption that prevents disc being copied, technology that makes copy of film unwatchable

25 Copyright Protection Measures Copyright Act now bans circumvention of Access Control Technologies (ATPM) No Ban on circumvention of Copy Control Technologies (CTPM) Can only circumvent ATPM to exercise rights under Statutory Print (Part VB) Licence – to access & make copies of part of a literary, musical, dramatic or artistic work in digital form

26 Copyright Protection Measures New ban on all dealings in circumvention devices and services You can manufacture or import a circumvention device for your own use only, however you cannot purchase one in Australia Applies regardless of whether designed to remove/disable ATPM or CTPM Not permitted to: –manufacture or import a circumvention device for another person –distribute, provide or offer a circumvention device to another person –communicate a circumvention device (including posting on internet or ing) –provide a service to circumvent an ATPM or CTPM Criminal Penalties Apply

27 Copyright Protection Measures Essential to first consider Content may be protected by both ATPM or CTPM – rules re ATPM apply & cannot circumvent If seeking to circumvent TPM must always establish if intended use is permitted in first place (eg is it permitted under a statutory licence? does flexible fair dealing apply?) Otherwise may infringe copyright on two counts

28 Copyright Protection Measures Q. Can I remove the copy protection on a VHS tape to format shift it to DVD? A.In most cases yes – the most common technology used on VHS is Macrovision – does not prevent access – its adds a signal so that you can copy but result is unwatchable. It is a CTPM and can be circumvented to allow format shifting as long as the format shifting itself is permitted (eg under flexible fair dealing or because it is program copied under Part VA statutory broadcast licence).

29 Copyright Protection Measures Q.Can I remove the copyright protection measure on a DVD to format shift it to MP4? A.For most commercial DVD’s – No. The most commonly used technology used on DVDs is an encryption system called CSS (Content Scrambling System). The software code on authorised players “unlocks” the encryption when played ie the CSS controls access – it is an ATPM. Removing it is unlawful. Some educational DVDs may not have CSS and use other copyright protection which you may be able to circumvent but check with Local Copyright Manager or NCU first.

30 Copyright Protection Measures Q.Can I use software like DVD Shrink to create a temporary copy of a film to let me copy small extracts of a film to use in class? A.No. This would involve applying decrypting software to unlock the CSS code and obtain an unencrypted digital version of the film. This would be a circumvention of an ATPM and is unlawful. The fact that you are only making a temporary copy is irrelevant.

31 Copyright Protection Measures Q.Can I use a video stabiliser to copy a film on VHS to DVD? A.Yes. Video stabilisers are used to remove the Macrovision signal from VHS. The Macrovision is a CTPM and can be circumvented as long as the format shifting itself is permitted (eg under flexible fair dealing or because it is program copied under Part VA statutory broadcast licence).

32 Learning Content Management Systems Some works you can copy and store using LCMS: films and music television and radio broadcasts print works, such as photos, maps and newspaper articles podcasts

33 Learning Content Management Systems Consider potential costs and risk of copyright infringement in relation to: 1. Putting material on the LCMS 2. Using the LCMS

34 Putting material on the LCMS Print Broadcasts Films (other than films copied from TV under the statutory broadcast licence) Music (other than music copied from radio under the statutory broadcast licence)

35 Teachers Using the LCMS Teachers can copy and communicate material under the statutory and voluntary licences within the limitations of those licences If schools or TAFEs negotiate licences directly with copyright owners, they need to ensure the licences permit copying and communication by teachers If teachers want to adapt or manipulate material, they generally need to obtain permission from the copyright owner

36 Students Using the LCMS The statutory licences do not permit students to copy and communicate material. Students wanting to copy and communicate material need to rely on fair dealing provisions or on direct licences with copyright owners We recommend including terms of use policies and warning notices advising students of how they are permitted to use the LCMS

37 Impact of LCMS on Jurisdiction’s Copyright Costs Significant costs for ongoing storage of material on the LCMS (any material stored on an LCMS for 12 months is deemed to be a new communication) If copying and communication increases, copyright costs will also increase. Administrative and licensing costs associated with obtaining licences to use material outside the scope of the statutory licences

38 Learning Content Management Systems Suggestions: Consider all potential costs when assessing costs of LCMS Be aware that there are limitations on what can be copied and communicated under the statutory licences Develop internal systems to ensure the school does not infringe copyright when it uses the LCMS

39 Smart Copying National initiatives – –National Copyright Guidelines –Smart Copying Website –NEALS (National Educational Access Licence for Schools) –Verifying processing of copying volumes & types –Information Sheets and education activities –A protocol for shared repositories

40 A Protocol for Shared Content Repositories Standardised process required to manage shared content Need licences that are wide enough to permit online use and sharing for reasonable time period Reduce reliance on costly Statutory Print (Part VB) Licence that only provides limited access Reduce risk of copyright infringement Increase use of Free For Education and own resources

41 Conclusion ● We don’t want copyright law to inhibit the creative adoption of new technologies in schools ● Need to raise awareness of rising copyright costs ● Should aim to achieve “best practice” management of digital resources, school intranets, content repositories and shared networks

42 National Copyright Unit Delia Browne (02) Alison Davis (02) Hilary May Black (02) Smart Copying Website: