Copyright in

Universities

Leanne Wiseman
Faculty of Law
QUT

99–E
Occasional Paper Series

Higher Education Division

Department of Education, Training and Youth Affairs
July 1999
 Copyright in Universities

© Commonwealth of Australia 1999

ISBN 0 642 23907 X
DETYA No. 6372.HERC99A

This work is copyright. Apart from any use as permitted under the Copyright
Act 1968, no part may be reproduced by any process without permission from
AusInfo. Requests and inquiries concerning reproduction and rights should be
addressed to the Manager, Legislative Services, AusInfo, GPO Box 84,
Canberra ACT 2601.
The views expressed in this report do not necessarily reflect the views of the
Department of Education, Training and Youth Affairs.

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 Copyright in Universities

Contents

1. Introduction .................................................................................... 1
1.1 Scope of the report.......................................................................1
1.2 Executive summary .......................................................................1
1.2.1 Introduction ................................................................................... 1
1.2.2 Ownership of copyright in universities............................................... 2
1.2.3 Use of copyright works within universities .......................................... 3
1.3 Overview.....................................................................................5
1.3.1 The role of copyright in universities................................................... 5

2. Introduction to copyright.................................................................. 7
2.1 International treaty obligations .......................................................7
2.1.1 Berne Convention for the Protection of Literary and Artistic Works
(Berne Convention)......................................................................... 7
2.1.2 Universal Copyright Convention....................................................... 8
2.1.3 International Convention for the Protection of Performers,
Producers of Phonograms and Broadcasting Organisations (Rome
Convention) 1961 .......................................................................... 8
2.1.4 General Agreement on Trade and Tariffs (GATT), Agreement on
Trade-Related Aspects of Intellectual Property Rights, Including
Trade in Counterfeit Goods (TRIPS) 1994 ......................................... 8
2.1.5 New copyright treaties..................................................................... 9
2.2 Australian copyright law ..............................................................10
2.2.1 General principles of copyright law ................................................ 10
2.2.2 Reform of copyright law ................................................................ 15
2.2.3 The role of collective administration ............................................... 17

3. Ownership of copyright works created within universities................ 21

3.1 Introduction ...............................................................................21
3.2 Rules of ownership .....................................................................21
3.2.1 By virtue of the employment relationship ......................................... 22
3.2.2 By assignment of ownership under contract ..................................... 27
3.2.3 By commissioning works................................................................ 29
3.2.4 Ownership through the intellectual property policies of the
university ..................................................................................... 30
3.3 Recommendations......................................................................34
3.3.1 Introduction ................................................................................. 34
3.3.2 Creators retain ownership of works................................................. 34
3.3.3 Creators share copyright ownership with their university.................... 36
3.3.4 Universities exert their right to ownership of copyright works
produced in the course of employment ........................................... 37

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 Copyright in Universities

3.3.5 University as publishers? ............................................................... 40

3.3.6 Conclusion .................................................................................. 42

4. Universities’ use of works protected by copyright ............................ 43

4.1 Introduction ...............................................................................43
4.2 Rights of copyright owner ............................................................43
4.2.1 Current rights ............................................................................... 43
4.2.2 Future rights................................................................................. 44
4.3 Use of copyright works................................................................44
4.3.1 Works in the public domain........................................................... 44
4.3.2 Copying of an insubstantial part of a work ...................................... 45
4.3.3 Fair dealing ................................................................................. 45
4.3.4 Licensing provisions ...................................................................... 57
4.3.5 Library copying provisions ............................................................. 86
4.3.6 Miscellaneous copying provisions................................................... 95
4.4 Recommendations......................................................................97
4.4.1 Education .................................................................................... 97
4.4.2 Development of intellectual property policies for use of copyright
works within universities................................................................. 98
4.4.3 Encouragement of academic staff to join Copyright Agency Limited... 98
4.4.4 Committment of resources............................................................. 98
4.4.5 Greater attention to be paid to the costs of copyright....................... 99
4.4.6 Monitoring role ............................................................................ 99
4.4.7 Lobby for change.......................................................................... 99

5. Future developments ................................................................... 103

5.1 Introduction .............................................................................103
5.2 The proposed digital agenda reforms .........................................103
5.2.1 The proposed new rights ............................................................. 104
5.2.2 The proposed exceptions............................................................. 107
5.2.3 Liability of carriers, carriage service providers (including Internet
service providers) and content service providers............................. 114
5.2.4 New enforcement measures......................................................... 115
5.3 Moral rights .............................................................................116
5.4 Article 2B Uniform Commercial Code (US)..................................117
5.5 Legal protection for databases ...................................................118

Appendix 1 ............................................................................................ 121

Select Bibliography ............................................................................... 123

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 Copyright in Universities

Abbreviations
AAU American Association of Libraries
ABPA Australian Book Publishers’ Association Ltd (now known
as the Australian Publishers Association)
ACLIS Australian Council of Library and Information Services
AMCOS Australasian Mechanical Copyright Owners Society
APA Australian Publishers’ Association
APRA Australian Performing Rights Association
AVCC Australian Vice-Chancellors’ Committee
Berne Berne Convention for the Protection of Literary and
Artistic Works (1886)
CAL Copyright Agency Limited
CAUL Council of Australian University Librarians
CETUS Consortium for Educational Technology for University
Systems (California State University, State University of
New York and City University of New York)
CCG Copyright Convergence Group
CLRC Copyright Law Review Committee
EFTSU Equivalent full-time student unit
NTEU National Tertiary Education Union
PPCA Phonographic Performance Company of Australia
RRO Reproductive Rights Organisations
Rome Convention Rome Convention for the Protection of Performers,
Producers of Phonograms and Broadcasting Organisations
Screenrights formerly the Audio Visual Collecting Society
TRIPS Agreement Agreement on Trade-Related Aspects of Intellectual
Property Rights (1994)
UCC Universal Copyright Convention
WIPO World Intellectual Property Organisation

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 Copyright in Universities

1. Introduction1

1.1 Scope of the report

This report was produced as part of a placement with the Educational
Developments and International Section of the Department of Education, Training
and Youth Affairs organised through the Australian Technology Network’s
Women’s Executive Development Program.
The parameters of this report, as set out in the project brief, were:
• to look at the issue of copyright within universities and at activities/reports
already undertaken; and
• to attempt to identify possible problems which could and do arise and make
recommendations which can be utilised by individual universities as they see fit.
Given the potential breadth of the study, it has been necessary to limit the report to
a number of select issues. Further and more extensive study is needed to fully
explore the range of issues that arise in this context.

1.2 Executive summary

1.2.1 Introduction
Historically copyright has had little, if any, obvious impact upon universities. In
recent years however, this situation has changed. While copyright in universities
gives rise to a number of issues, this report focuses upon the questions of
ownership and the use of copyright works. While the issue of who owns copyright
is important, perhaps the most important issue facing universities with respect to
copyright is the ever-increasing cost associated with the use of copyright works.
One of the great paradoxes of the current system of copyright management within
universities is that a vast amount of money is spent by universities for the copying
of works created by staff employed in the university sector.

1
I would particularly like to thank the following people for their assistance: Prof. Dennis
Gibson, Queensland University of Technology; Prof. Malcolm Cope, Queensland University
of Technology, the staff of the Australian Technology Network’s Women’s Executive
Development Program, Peter Nicholson, Robyn Streat, Jeremy Stuparich and the staff of the
Educational Developments and International Section of the Department of Education,
Training and Youth Affairs, Bernice Andersen of the Australian Vice-Chancellors’
Committee, Cate Banks, Danielle Brennan, Ann Monotti and Dr Brad Sherman. This report
was completed in November 1998.
 Copyright in Universities

It is widely recognised that the increasing costs of copyright may have a dramatic
effect on universities’ ability to pursue their traditional goals of research, teaching
and study. In order to ensure that this does not happen, a new approach to
copyright management needs to be taken. While new approaches to university
copyright management may be met with skepticism and resistance, it is time for the
current approaches to copyright to be reconsidered.

1.2.2 Ownership of copyright in universities

The issue of ownership of copyright works within universities needs to be clarified.
The debate concerning copyright ownership revolves around who actually owns
copyright works produced within universities: the university as employer or the
academic as creator? To date, copyright ownership in universities has primarily
been considered in terms of the commercial consequences that flow from
ownership. While this issue needs to be addressed, it is important that ownership
not only be seen in terms of the potential pecuniary benefits that may flow to staff
or university management. The reason for this is that the way in which ownership
of copyright works is addressed may help to resolve other problems, such as the
enormous costs associated with copying of works currently facing universities.
Thinking about copyright ownership in this way may also help to avoid the
animosities and misunderstandings that often arise amidst discussions about the
ownership of copyright in the university context.
To re-examine the ownership of copyright in universities, a number of steps need
to be taken.
For more informed decisions to be made about copyright practices, there is a need
for detailed studies in relation to current copyright practices to be undertaken. For
example, information about copyright assignment and licensing practices and also
the uses being made of digital technology by staff and students would assist
universities in making decisions about changes that may be needed in the future.
Academics, their unions and university management need to re-open the issues
concerning copyright ownership within universities. It is important that in so doing
they shift attention away from the current commercial focus on ownership of
copyright works to also consider the ways in which ownership may impact upon
the costs associated with use of copyright works.
To assist such discussions, this report has identified a number of different
ownership models that may be explored.

1.2.2.1Creators retain ownership of copyright works

One option is that academics and other university employees who create continue
to exercise copyright ownership of works they have created. To ensure that access
to their works is maintained at reasonable rates, these staff would need to be re-
educated about the importance of negotiating publishing contracts with the aim of
retaining rather than assigning copyright.

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 Copyright in Universities

1.2.2.2Creators share copyright ownership with the university

Another option is that the creators and their universities share ownership of
copyright. The purpose of joint ownership would be to increase the bargaining
power of academics and their institutions which would help to enable them to
negotiate more balanced publishing arrangements. This would reduce the cost of
using copyright works.

1.2.2.3Universities exert their right to ownership of copyright works

produced in the course of employment
A third option for consideration is that universities exert their right to ownership of
copyright works created by their staff. Academics may be persuaded of the benefits
of university ownership if it could be shown that the purpose of such ownership
was to ensure greater access to academics’ works and the reduction of the huge
costs currently associated with copyright.

1.2.3 Use of copyright works within universities

The issue of the use which is made of copyright works within universities gives rise
to a range of complex and contentious issues, perhaps the most important being
the ever-increasing costs associated with use. Despite the fact that the amount of
money that is paid to the various collecting societies has increased dramatically in
the past five years,2 universities have largely remained complacent about the
spiralling costs of copyright and the impact that this has had on universities.
Universities, both collectively and individually, must pay more attention to
copyright.
A number of steps could be taken to improve the current situation with regard to
the use of copyright works.

1.2.3.1Education
Universities should establish a series of programs to educate university staff about
the importance of copyright. These should aim to promote a better understanding
of copyright, particularly with respect to the use of digital technologies.

2
An example of the increasing costs is given by Queensland University of Technology. In
1996 Queensland University of Technology paid approximately $508 600 in copyright
licence fees, the bulk of which was paid to Copyright Agency Limited ($282 705) and Audio
Visual Collecting Society ($223 385). The 1996 figure represented an increase of charges
from 1995 of almost 80 per cent. Given that charges are based largely on the year’s
EFTSU, it is of concern that the 1996 EFTSU showed only an increase of 6.26 per cent over
the 1995 figure.
3
 Copyright in Universities

1.2.3.2Development of intellectual property policies for use of

copyright works within universities
Universities should implement intellectual property policies and strategies for use of
copyright works. This would not only focus attention on the issue of use of
copyright works but would also assist universities and their staff to better manage
the use that is made of copyright material within the university sector.

1.2.3.3Encouragement of academic staff to join Copyright Agency

Limited (CAL)
Universities should encourage their staff to join the Copyright Agency Limited. If
staff were members of Copyright Agency Limited, this may mean that some of the
cost of copying paid to collecting societies would be returned to the university
sector.

1.2.3.4Commitment of resources
Greater resources need to be committed to copyright management within the
university sector. Such resources could be used to assist universities in achieving a
better understanding of copyright issues. They could also be used by peak bodies
such as the Australian Vice-Chancellors’ Committee (AVCC) in lobbying for
appropriate legislative changes.

1.2.3.5Greater attention to be paid to the costs of copyright

It is imperative that the costs of copyright be factored into decisions being made
about future developments in teaching, learning, research and scholarship.

1.2.3.6Monitoring role
In order for universities to contribute to the development and reform of copyright
law in Australia, universities must monitor relevant developments taking place at
the national and international level.

1.2.3.7Lobby for change

A collective voice representing universities’ interests on copyright issues is needed
to respond to the powerful lobby groups that represent copyright owners. In
addition to the considered responses made on behalf of the university sector on the
recent proposed reforms of copyright law, consideration should also be given to
lobbying for:
• support and adoption of appropriate CLRC recommendations, in particular the
more flexible fair dealing provisions;
• a review of the practices of collecting societies; and
• a broadening of the jurisdiction of the Copyright Tribunal.

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 Copyright in Universities

1.3 Overview
Historically, universities have largely been indifferent to copyright. It seems,
however, that this period has come to an end (see Rome, W. 1985, ‘Scholarly
writings in the university setting: changes in the works and on the books’, Copyright
Law Symposium, no. 41, p. 61, cited in Australian Copyright Council 1997, p. 3).
There are a number of reasons for this change. The increasing costs associated with
copyright is one reason that warrants close and continued attention of copyright
issues; for example, in 1995, well in excess of $25 million (see Best 1997, p. 2) was
spent on copyright by the education sector as a whole. The rapid development of
technologies, from the photocopiers in the 1980s to the Internet in the 1990s, is
another reason for the increasing importance of copyright. These technological
developments mean that academic employees increasingly produce copyright
materials such as computer programmes, videos, sound recordings and electronic
databases with the potential for successful commercial exploitation. With new
markets opening and expanding for the distribution and marketing of academic
material, there is also a greater recognition of the possibility for commercial
exploitation of works such as journal articles, teaching materials, lecture notes and
books. The increasing pressure on tertiary institutions to become commercially
productive and more self-sufficient has been another important impetus for change.
Universities are having to reassess their objectives and goals due to the reduction in
government funding and consequent budgetary constraints, increasing student
numbers and increasing community demands for accountability (see Monotti 1994,
pp. 340, 341).
The digital technologies have important ramifications for all who deal in
information. As one commentator has noted:
At the heart of the world debate on intellectual property rights is a precarious
balance between content users and content owners. Digitalisation has sent that
accrued balance spinning. Copyright holders fear that it has tipped power into the
hands of users, who can now make and distribute thousands of copies with the
click of a mouse. Users reckon that these fears are overblown, and worry that
content consumers will be denied access to information they now take for
granted—and perhaps even lose the right to speak freely. Meanwhile the loss of
geography in a digital universe has brought face-to-face all of the various and
contradictory approaches to intellectual property that have evolved in different
parts of the world. (Browning 1997)
Digitalisation has particularly had an impact on the way in which universities deliver
their courses and on the way in which academics and students research.

1.3.1 The role of copyright in universities

Universities and members of the university have many different copyright roles:
they are creators,3 users, maintainers, managers and distributors of copyright

3
The Australian Vice-Chancellors’ Committee identified the typical activities within
universities which lead to the creation of copyright materials as including ‘writing of books,
articles, manual writing teaching materials, computer programs, dramatic work, composing
music, making of original video tape, creating a work of art, designing a questionnaire or a
5
 Copyright in Universities

materials (AAU Task Force on Intellectual Property Right in an Electronic

Environment 1994, p. 12). While issues relating to copyright arise in a number of
circumstances within universities, this report focuses on two issues:
• copyright works created within the university, by academics, general staff,
students, visiting scholars and consultants; and
• copyright works used by universities (including individuals and libraries) for
educational, scholarly and research purposes.
While both of these issues pose important problems for universities, due to the
spiralling costs of access to copyright materials produced both within and outside
the university,4 it seems that the way in which copyright materials are used is at
present the more pressing issue.
It is important to note at the outset that the universities and the Copyright Agency
Limited, and more recently the universities and the audio-visual collecting society
(Screenrights), are currently before the Copyright Tribunal litigating a number of
issues which are raised in this report. The outcomes of these hearings, which are
not expected for some time, will have an important impact on the matters raised in
this report. As such, many of the issues identified as being of concern to
universities will have to be reviewed once a determination has been made.

form, making an audio visual production, making a multimedia production, and creating a
database’ (Australian Vice-Chancellors’ Committee 1995a, p. 2).
4
For example, payments to Copyright Agency Limited per EFTSU (equivalent full-time
student unit) in 1997 totalled $6 656 213.23 (DEETYA 1997, Table 35).
6
 Copyright in Universities

2. Introduction to copyright
Before looking in detail at the copyright issues facing universities, it may be helpful
to provide a brief overview of some of the relevant principles of copyright law.

2.1 International treaty obligations

Australia is a party to a number of international treaties relating to copyright. These
treaties set out the minimum standards of protection required by member states.
Australia is a party to the following multilateral treaties.

2.1.1 Berne Convention for the Protection of Literary

and Artistic Works (Berne Convention)
The Berne Convention, established in 1886, lays down minimum standards of
protection for literary and artistic works and films. The most recent substantive
revision occurred in the Stockholm Act of 1967. Of particular importance to this
report are the following:
Article 9
(2) It shall be a matter for legislation in the countries of the Union to permit the
reproduction of . . . works in certain special cases, provided that such
reproduction does not conflict with a normal exploitation of the work and does
not unreasonably prejudice the legitimate interests of the author . . .
Article 10
(1) It shall be permissible to make quotations from a work which has already
been lawfully made available to the public, provided that their making is
compatible with fair practice, and their extent does not exceed that justified by
the purpose, including quotations from newspaper articles and periodicals in the
form of press summaries.
(2) It shall be a matter for the legislation in the countries of the Union, and for
special agreements existing or to be concluded between them, to permit the
utilization, to the extent justified by the purpose, of literary or artistic works by
way of illustration in publications, broadcasts or sound or visual recordings for
teaching. Provided such utilization is compatible with fair practice.
The Berne Convention is administered by the World Intellectual Property
Organisation (WIPO), a specialised agency of the United Nations. It should be
noted that the Berne Convention is now supplemented by the new 1996 WIPO
Copyright Treaty, discussed below. The WIPO Copyright Treaty is a protocol as
between members of the Berne Convention, but using the GATT Agreement on
Trade-Related Aspects of Intellectual Property Rights (GATT TRIPS) device, non-
Berne members can join the Copyright Treaty provided they implement all the
obligations of the Berne Convention.

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 Copyright in Universities

2.1.2 Universal Copyright Convention

The Universal Copyright Convention was concluded in 1952 with membership
comprising many Berne Convention member countries and also the US, which was
not then a member of Berne. The Universal Copyright Convention applied to the
same range of works as were protected by Berne, but the standards of protection
were lower and more general. Since the US joined the Berne Convention in 1989,
the international importance of the Universal Copyright Convention has
diminished.

2.1.3 International Convention for the Protection of

Performers, Producers of Phonograms and Broadcasting
Organisations (Rome Convention) 1961
The Rome Convention sets out protection for sound recordings, broadcasts and
performances. The Rome Convention is administered by World Intellectual
Property Organisation. Until the TRIPS agreement in 1994, it remained the only
international instrument protecting performer’s and broadcaster’s rights.
It is useful to note in particular Article 15 which provides that:
1. Any Contracting State may, in its domestic laws and regulations, provide for
exceptions to the protection guaranteed by this Convention as regards:
(a) private use;
(b) use of short excerpts in connexion with the reporting of current events;
(c) ephemeral fixation by a broadcasting organisation by means of its own
facilities and for its own broadcasts;
(d) use solely for the purposes of teaching or scientific research.
2. Irrespective of paragraph 1 of this Article, any Contracting State may, in its
domestic laws and regulations, provide for the same kinds of limitations with
regard to the protection of performers, producers of Phonograms and broadcasting
organisations, as it provides for, in its domestic laws and regulations, in
connexion with the protection of copyright in literary and artistic works.
The WIPO Performances and Phonograms Treaty of 1996 completely supersedes
and expands the protection afforded by the Rome Convention for sound
recordings and performer’s rights.5

2.1.4 General Agreement on Trade and Tariffs (GATT),

Agreement on Trade-Related Aspects of Intellectual Property
Rights, Including Trade in Counterfeit Goods (TRIPS) 1994
TRIPS requires implementation of the protection prescribed by the Berne
Convention, except for the moral rights provisions. TRIPS represents a change in

5
The WIPO Performances and Phonograms Treaty does not afford protection to
performances fixed in films and videos (see Creswell 1997, pp. 30, 31; see also Sherman &
Bently 1996).
8
 Copyright in Universities

the intellectual property-specific conventions of having extensive provisions for the

enforcement of intellectual property rights. The preamble to the TRIPS Agreement
commences with a statement of the desires of the members:
To reduce distortions and impediments to international trade, and taking into
account the need to promote effective and adequate protection of intellectual
property rights, and to ensure that measures and procedures to enforce intellectual
property rights do not themselves become barriers to legitimate trade.
It is useful to note Article 13 which provides as follows:
Members shall confine limitations or exceptions to exclusive rights to certain
special cases which do not conflict with a normal exploitation of the work and do
not unreasonably prejudice the legitimate interests of the rights holders.
The Copyright Law Review Committee (CLRC) in its report, Simplification of the
Copyright Act 1968, part 1, exceptions to the exclusive rights of copyright owners (CLRC
Report) (1998), noted the report of a study by the WIPO International Bureau on
the implications of the TRIPS Agreement for treaties administered by World
Intellectual Property Organisation 1996, para. 52, 53). The study examined the
relationship between Article 13 of TRIPS and the various exceptions to authors’
rights permitted under Berne. The Bureau commented:
None of the limitations and exceptions permitted by the Berne Convention
should, if correctly applied, conflict with the normal exploitation of the work and
none of them should, if correctly applied, prejudice unreasonably the legitimate
interests of the right holder. Thus generally and normally, there is no conflict
between the Berne Convention and the TRIPS Agreement as far as exceptions
and limitations to exclusive rights are concerned.
The Copyright Law Review Committee agrees with these statements ‘as an
interpretation of the relationship between the narrower limitations provided for in
Berne and those in TRIPS’. They also notes that Article 2(1) of TRIPS provides that
nothing therein ‘shall derogate from existing obligations that Members may have to
each other under . . . the Berne Convention . . . ’ This suggests that authors from
Berne Convention member countries remain entitled to the same minimum level of
protection, in any Berne Convention member country, as applied at the time that
country assumed its TRIPS obligations (Copyright Law Review Committee 1999,
p. 3).

2.1.5 New copyright treaties

In recognition of the fact that the Berne Convention was in need of another revision,
in 1991 World Intellectual Property Organisation convened a committee of experts
on a possible protocol to the Berne Convention. A second committee of experts
was formed to consider, in effect, updating the Rome Convention.
These eventually led to the establishment of two new treaties which were passed in
December 1996 at the WIPO Diplomatic Conference held in Geneva. These are:
• WIPO Copyright Treaty; and
• WIPO Performances and Phonograms Treaty.
It is likely that Australia will become a signatory to the treaties in the near future. It
is important to note that the treaties have no immediate effect until 30 ratifications
9
 Copyright in Universities

or accessions for each treaty have been received by World Intellectual Property
Organisation. Accordingly, it may be some time before the treaties will come into
force.
One of the major achievements of the treaties is to bring international copyright
standards into the digital age. It does this by extending the existing right of
communication to the public in the Berne Convention to include texts and images,
by adding the right of making available to the public, by protecting against the
abuse of technological copyright protection measures; and by protecting against the
deliberate alteration or removal of electronic rights management information
attached to copyright material (Hawkins 1997, pp. 5–6).
As well as enhancing the rights of copyright owners, the new treaties also provide
for a series of defences. These defences are, as is stated in the preamble, motivated
by ‘the need to maintain a balance between the rights of authors and the larger
public interest, particularly education, research and access to information, as reflected
in the Berne Convention’ [emphasis added].
A third proposed WIPO Treaty is the Database Treaty which dealt with protection
for non-original databases.6 The introduction of this treaty has, however, been
deferred for the present (for a more detailed discussion see Section 5.4).

2.2 Australian copyright law

The Copyright Act 1968 (Cwlth) as amended governs copyright law in Australia.
Despite recent amendments in 1998, further amendments to bring Australia in line
with the new WIPO Copyright Treaty are expected in the near future. The need for
a major overhaul of the Copyright Act in Australia is primarily in response to the
rapid technological developments in the areas of broadcasting, telecommunications
and computing.

2.2.1 General principles of copyright law

2.2.1.1Nature of works protected by the Copyright Act 1968 (Cwlth)

There are two types of subject matter protected under the Copyright Act 1968
(Cwlth). The two broad categories are ‘works’ (Part III) and ‘subject matter other
than works’ (Part IV).
Part III (Sections 31–83) of the Copyright Act provides copyright protection for
‘works’—i.e. original literary, dramatic, musical and artistic works. Each of these
works are defined in the Act (Section 10). For example, ‘literary work’ is defined to
include ‘a table, or compilation, expressed in words, figures or symbols (whether or
not in a visible form); and a computer program or compilation of computer
programs’.

6
The basic proposal for the substantive provisions of the treaty on intellectual property in
respect of databases, Doc CRNR/DC/6.
10
 Copyright in Universities

Part IV (Sections 84–112B) of the Copyright Act provides copyright protection for
‘subject matter other than works’, which includes subject matter such as sound
recordings, cinematograph films, television broadcasts, sound broadcasts and
published editions of works.
While some use is made of films, sound recordings and visual works in universities,
increasingly so with the advent of multimedia creations, the vast amount of works
produced within and used by universities are literary works. These may take the
form of teaching materials, lecture notes, academic journal articles, books. As such,
the protection afforded by Part III has been of primary importance to universities.
It is useful to note that whilst multimedia works are seen to be a new innovation in
teaching, for the purposes of copyright multimedia creations are merely a
combination of literary, musical and artistic works used in combination with sound
recordings, television broadcasts and film. Accordingly, they are afforded the same
level of protection as traditional works. For a more detailed examination of the
problems multimedia works pose for universities (see Section 4.3.4).

2.2.1.2Duration of copyright
The period of copyright protection depends on the type of subject matter. The
term of copyright protection of a literary, dramatic, artistic7 and musical work is 50
years from the expiration of the year of the author’s death or from the first year in
which the work is published, performed in public, broadcast or sold in record from,
whichever is the later (ss 33(2), (3), (5) Copyright Act 1968 (Cwlth)).
It is important to note that Europe has recently extended the period of protection
from life of the author plus 50 years to life of the author plus 70 years.8 The effect
of this extension of the term of protection has meant that many works that were in
the public domain and thus could be used freely have come back under copyright
protection for a further 20 years. It is possible that in the future pressure will be
brought to bear on Australia to increase the term of protection for copyright to the
level afforded in Europe.

2.2.1.3Transfer and assignment

As copyright is personal property, it may be transmitted by assignment, by will and
by devolution by operation of law (s 196(1) Copyright Act 1968 (Cwlth)). Whilst the
copyright owner is able in law to transfer or assign their works, in practice it is
often more profitable for owners of copyright to licence the use of their works than
to sell those works. This practice enables the continuing commercial exploitation of
the work during its period of use.

7
Other than engravings (see s 33(5) Copyright Act 1968 (Cwlth)) or photographs (see
s 33(6) Copyright Act 1968 (Cwlth)).
8
Article 1, Council Directive 93/98/EEC. The United States is also considering an extension
of their copyright term to life plus 70 years to follow the European lead. See, for example,
the Copyright Term Extension Act of 1997 (HR 604) which was passed by both the House
and the Senate on 7 October 1998.
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 Copyright in Universities

As many individual copyright owners are not in a position to enforce their

copyright due to their inability to police copying, copyright owners often enlist
collecting societies to licence the use of their works and to collect payments on
their behalf.

2.2.1.4Ownership of copyright works

Under copyright law, the general rule is that the author of a literary, artistic,
dramatic or musical work is the owner of that work (s 35(2) Copyright Act 1968
(Cwlth)). There are, however, a number of exceptions to this general rule:
• Employment
Where a literary work is made ‘in pursuance of the terms of his[/her]
employment by another person under a contract of service’, the employer is the
owner of that copyright (s 35(6) Copyright Act 1968 (Cwlth)).
• Assignment
As copyright is personal property, the Copyright Act allows owners to assign
copyright in existing (s 196(1)) and future (s 197(1)) works.
• Commissioned works
Where a work, which is a photograph, portrait or engraving, is commissioned
for a fee or some other benefit, the person who commissioned the work is the
owner of the copyright in that work (s 35(5)).

2.2.1.5Copyright owner’s rights

Current rights
Section 31 of the Copyright Act 1986 (Cwlth) gives the copyright owner certain
exclusive rights including the right, in the case of a literary dramatic or musical
work, to do all or any of the following acts:
(i) to reproduce the work in a material form;
(ii) to publish the work, to perform the right in public;
(iii) to broadcast the work;
(iv) to cause the work to be transmitted to subscribers to a diffusion service;
(v) to make an adaptation of the work;
(vi) to do, in relation to a work that is an adaptation of the first-mentioned work,
any of the acts specified in relation to the first-mentioned work in sub-
paragraphs (i) to (v) inclusive.
Copyright owners are given certain exclusive rights to do a number of things in
relation to sound recordings, cinematograph films, television broadcasts and
published editions of works (Division 2 of Part IV Copyright Act 1968 (Cwlth)).

12
 Copyright in Universities

These acts include the right to make a copy of the film or sound recording, to cause
the recording to be heard in public, to broadcast the sound recording or film.9
Accordingly, anyone who does any of these things without the permission of the
copyright owner infringes the copyright owner’s rights. This does not apply,
however, if the act falls within one of the permitted exceptions of the Copyright Act.
(For a discussion of the fair dealing exception, see Section 4.3.3.)

Future rights
As part of the copyright reform that is currently being considered in Australia and
at the international level, it is likely that copyright owners will be given additional
rights of ownership. Article 8 of the WIPO Copyright Treaty introduces a general
‘communication to the public’ right. The proposals in the Australian Government
Copyright reform and the digital agenda paper (1997) separately provided for a right of
transmission and a new right of making available and a right to remuneration for
broadcasting and communication to the public. The Government has now signalled
its intention to combine these rights into one broad ‘communication to the public’
right (Attorney-General & the Minister for Communications, the Information
Economy and the Arts 1998).10 The right may be described as including
transmissions to the public in the traditional non-interactive sense of
‘broadcasting’—i.e. the emitting of signals from a transmitter to a receiving device
at a time chosen by the person making the transmission (Attorney-General’s
Department & Department of Communications and the Arts 1997, p. 22)—and
what was formerly known as the right of making available, which would be
exercised when copyright material was made available to the public in such a way
that it could be accessed at a time and a place chosen by members of the public.
That right was designed to cover interactive on-demand services (Attorney-
General’s Department & Department of Communications and the Arts 1997,
p. 22).
An attempt was made at the WIPO Diplomatic Conference in 1996 to include a
provision in the new WIPO Copyright Treaty to clarify or extend the right of
reproduction contained in Article 9 of the Berne Convention. The draft provision
would have allowed national laws to exclude from the scope of the right of
reproduction certain temporary or incidental reproductions that are made as part of
the technical process of transmitting copyright material on the Internet. The
following statement on the scope of the reproduction right was adopted at the
Conference:
The reproduction right, as set out in Article 9 of the Berne Convention, and the
exceptions permitted thereunder, fully apply in the digital environment, in
particular to the use of works in digital form. It is understood that the storage of
a protected work in digital form in an electronic medium constitutes a
reproduction within the meaning of Article 9 of the Berne Convention.

9
See s 85 Copyright Act 1968 (Cwlth) in relation to sound recordings; s 86 Copyright Act
1968 (Cwlth) in relation to cinematograph films; s 87 Copyright Act 1968 (Cwlth) in relation
to television and sound broadcasts; and s 88 Copyright Act 1968 (Cwlth) in relation to
published editions of works.
10
See also Minister for Communications, the Information Economy and the Arts 1998.
13
 Copyright in Universities

However, unlike all other statements agreed to at the Diplomatic Conference, the
statement on the reproduction right was not adopted unanimously or by consensus.
Consequently the issue of whether copyright extends to all temporary or incidental
reproductions was not resolved at the Conference (Copyright Law Review
Committee 1997).

2.2.1.6Defences and exceptions to copyright owners’ rights

Current defences
There are a number of defences currently provided for in the Copyright Act that
allow use of copyright materials without that use constituting an infringement. The
most relevant provisions for education are:
• fair dealing provisions
• compulsory licensing provisions
• library copying provisions
• miscellaneous copying provisions.
These defences will be examined in detail below in Part 4.

Future defences and exceptions

To balance the new proposed rights of copyright owners, a number of new
exceptions have also been suggested in the Federal Government’s digital agenda
paper (for a more detailed discussion see Section 5.2.2). These include exceptions
for:
• Temporary and incidental copies
It is proposed to exclude from the right of reproduction, temporary and
incidental copies that are made in the course of the technical process of
electronic transmissions.
• Browsing
It is proposed that the act of browsing will not involve an exercise of the right
of reproduction nor will the incidental copy created in the course of browsing
infringe the reproduction right.
• Fair dealing
It is proposed that the fair dealing provisions would apply in relation to the
proposal for the new right of communication to the public.
• Libraries
The Federal Government has recently confirmed that ‘libraries, archives,
galleries and museums (cultural institutions) will be able to use material in their
collections for preservation and internal management purposes without
obtaining permission (this would include digitising the material and making it
available on an intranet for staff use only) but subject to safeguards for owners’
rights’ (Minister for Communications, the Information Economy and the Arts
1998).

14
 Copyright in Universities

2.2.2 Reform of copyright law

Over time, the Government has given responsibility for the review and reform of
copyright law in Australia to a number of bodies. It is useful to briefly discuss the
relevant law reform bodies and the reports produced to date.

2.2.2.1Copyright Convergence Group

In 1994 the Copyright Convergence Group (CCG) was formed to examine ways of
updating copyright law to protect new forms of digital communications. The
recommendations made in the CCG’s 1994 report, Highways to Change, was one of
the impetuses to the Federal Government’s discussion paper, Copyright reform and the
digital agenda.

2.2.2.2Copyright Law Review Committee

The Copyright Law Review Committee was established in 1983 by the Attorney-
General as a specialist advisory body to report to the Government on specific
copyright law issues referred to it from time to time for its consideration. It has
already reported on matters concerning copyright law and computers (Copyright
Law Review Committee 1995).
The Copyright Law Review Committee was asked to report to the Attorney-
General on ways in which the Copyright Act may be simplified, with particular
attention to be given to the various provisions under the Act that provide
exceptions to the rights comprising copyright. To this end, a number of issues
papers have been issued:
• Simplification of the fair dealing provisions of the Copyright Act 1968 (Fair Dealing
Issues Paper)
• Copying by libraries and archives under the Copyright Act 1968 (Library Copying
Issues Paper)
• Copying for people with disabilities under the Copyright Act 1968
• Educational institutions and copying under the Copyright Act 1968 (Educational
Copying Issues Paper)
• Miscellaneous exceptions to exclusive rights of copyright owners.
In July 1998, the Copyright Law Review Committee sought further advice on
matters raised under its terms of reference which required urgent responses to a
number of matters raised. Given the importance of these discussion papers to the
university sector, it is relevant to consider the issues raised in the discussion papers
and the submissions made in response.
It was announced on the 11 September 1998 that Part 1 of the CLRC Report on
simplification of the Copyright Act 1968 was completed (Copyright Law Review
Committee 1998a). The CLRC Report (1998b) is in two parts: Part 1 addresses the
exceptions to the exclusive rights of copyright owners; and Part 2, which is yet to
be made public, deals with simplification of the rights and subject matter protected
under the Act.

15
 Copyright in Universities

Part 1 of the CLRC Report describes a workable model for simplifying and
streamlining the various exceptions to copyright owners’ rights, whilst ensuring that
the simplified provisions maintain an appropriate balance between the rights of
copyright owners and users in the new digital environment. The centre piece of the
Committee’s recommendations concerns fair dealing. The Committee has
recommended that an open-ended and more flexible approach to fair dealing would
enable it to be more easily applied to new technologies (Pearce 1998).
The CLRC Report contains many recommendations many of which are relevant to
this report. Universities should become familiar with the details of the CLRC
Report to enable them to respond appropriately.

2.2.2.3The Copyright Amendment Act (No 1) 1998

The Copyright Amendment Bill 1997 was introduced into the House of
Representatives on 18 June 199711 and was debated in the House on 25 June12. The
Bill was introduced into the Senate on 27 June and was referred to the Senate
Standing Committee on Legal and Constitutional Legislation.13 In early July, the
Federal Government removed the contentious moral rights provisions from the
Copyright Amendment Bill to allow for further industry consultation.
Of the issues contained in the Copyright Amendment Bill, one of the areas of relevance
to the university community was the educational copying of artworks without
payment. There were also some minor amendments, which were suggested to
streamline the operation of the educational copying provisions and the Copyright
Tribunal, which are also of relevance to the university community.
The Bill was passed by the Senate on 11 July 1998 and by the House of
Representatives on 15 July 1998.14 The Bill became an ‘Act’ on 30 July 1998, when
the Governor-General gave the Royal Assent.
The moral rights provisions contained in the original draft of the Bill, although
withdrawn, are likely to be enacted at some point in the near future. The moral
rights provisions, if enacted, are likely to have a large impact upon university
practices with respect to copyright material produced within the university;
accordingly it will be useful to examine the proposed introduction of moral rights
and its effect upon university practices (for a further discussion, see Section 5.3).

11
The Bill was based on a draft which was circulated in February 1996.
12
The main issues debated were moral rights for screen writers, copying by media monitors
and educational copying of artworks without payment (s 135ZM Copyright Act 1968
(Cwlth)).
13
The Committee can consider any aspect of the Bill but two areas were identified as
reasons for referral: moral rights—in particular who should be entitled to exercise moral
rights in a film; and changes to journalists’ copyright provisions—particularly the right of
restraint on photocopying a newspaper.
14
The Copyright Amendment Bill (No 2) 1998 dealing with parallel importation of CDs was
passed by the Senate on the 12 July 1998 and by the House of Representatives on the
15 July 1998 and was assented to on the 30 July 1998.
16
 Copyright in Universities

2.2.2.4Copyright reform and the digital agenda

In July 1997, the Federal Attorney-General’s Department and the Department of
Communications and the Arts issued a discussion paper, entitled Copyright reform and
the digital agenda, which examines the proposed reform of copyright law in response
to digital technology.15 On 10 September 1998, the Federal Government gave
further guidance on the proposed Copyright and the digital agenda reforms.16 It is
anticipated that the Federal Government will have legislative provisions drafted for
consideration in the near future. Due to the importance of these provisions, it will
be necessary to closely monitor the developments as they occur.

2.2.3 The role of collective administration

Given the nature of copyright owners’ rights, it is difficult and time consuming for
users of copyright works to ascertain who is the owner of certain works in order to
obtain permission to use those works. To aid in the commercialisation of their
works, academic authors are routinely required to assign their copyright to
publishers in order to secure publication of their works. The copyright owners and
the publishers who own the copyright in works rely upon collecting societies to
collect licence fees for copies of the works that are made, which are collected and
returned to the creator, less an administrative charge. Copyright collecting societies
are non-profit organisations which license certain uses of copyright material on
behalf of their members, and distribute the fees collected to their members (for the
practices of collecting societies, see Simpson 1995).
Before examining the interests of the various collecting societies, it is useful at this
point to discuss the operation of the Copyright Tribunal, as it has jurisdiction over
the compulsory licensing provisions.

2.2.3.1The Copyright Tribunal

The Copyright Tribunal has jurisdiction to determine matters in relation to the
grant of copyright licences and the determination of royalties and remuneration.
One of the reasons for the establishment of the Tribunal (s 138 Copyright Act 1968

15
The purpose of the paper was ‘to seek comments on the proposed scheme for the
introduction of a new package of rights, including a proposed transmission right and right of
making available to the public and to improve the protection for copyright creators in the
new communications environment and also to seek comments from the community in
relation to whether Australia should implement important obligations in and thus sign the
new WIPO Treaties, the WIPO Copyright Treaty and the WIPO Performances and
Phonograms Treaty (Attorney-General’s Department & Department of Communications and
the Arts 1997, p. xii).
16
This guide addresses the practical implications of the Government’s decision announced
on 30 April 1998 to amend the Copyright Act (see Minister for Communications and the
Arts 1998). This is further to the Federal Government’s statement on 30 April 1998
committing to Copyright and the Digital Agenda reforms (Attorney-General and the Minister
for Communications, the Information Economy and the Arts 1998). For a further discussion
of the proposed digital agenda reforms, see Section 5.2.
17
 Copyright in Universities

(Cwlth)) was the need to control the exercise by the collecting societies or
organisations of the rights given to them by copyright owners (discussed in
Copyright Law Review Committee 1965). It is the monopolistic nature of these
organisations and their ability to fix and alter royalties and to grant and withhold
licences subject to conditions which has caused concern.
The jurisdiction of the Tribunal may be summarised under two headings (Lahore,
[30,055]):
• applications to the Tribunal
− for the determination of remuneration payable upon exercise of a statutory
licence,
− in relation to the granting of licences where a licence scheme applies, and
− in relation to the granting of licences where there is no such scheme in
operation; and
• references to the Tribunal of
− proposed licence schemes, and
− existing licence schemes.
The Tribunal’s task is to determine ‘equitable’ remuneration under a licence
scheme; ‘equitable’ being interpreted as what is fair and reasonable to the copyright
owner, rather than the public or the publisher, record maker or other producer
(McKeough & Teece 1994, p. 269).
The Copyright Tribunal is seen to have a reactive role. It can only initiate inquiries
upon a reference from the Attorney-General (see s 148 Copyright Act 1968 (Cwlth))
or deal with disputes brought before it by aggrieved parties. There have been some
suggestions that the jurisdiction of the Copyright Tribunal needs to be broadened
to enable it to adjudicate over all collectively administered licensing schemes and
not just the compulsory licensing schemes. (For a further discussion, see
Section 4.4.)
Schedule 8 of the Copyright Amendment Act (No 1) 1998 makes a number of minor
amendments to the provisions concerning the Copyright Tribunal. The
amendments are intended improve the operation of the Tribunal, as well as
enhancing access to the Tribunal by parties (see also Attorney-General’s
Department 1998).

2.2.3.2Collecting societies
There are a number of collecting societies that are relevant to the use of copyright
works in universities. These include the Copyright Agency Limited, Screenrights
(formerly Audio Visual Copyright Society Limited), Australian Performing Rights
Association (APRA), Australasian Mechanical Copyright Owners’ Society,
Phonographic Performance Company of Australia (PPCA), and VI$COPY. While
there are a number of collecting societies, the collecting societies that universities
have most dealings with are those that manage the compulsory licensing provisions
under the Copyright Act: Copyright Agency Limited and Screenrights. It is useful
here to briefly outline the interests of each of the copyright collecting societies.

18
 Copyright in Universities

Copyright Agency Limited

Copyright Agency Limited was set up in 1974 by authors and publishers principally
to deal with the changing economics of the publishing market resulting from the
impact of the photocopier. Although Copyright Agency Limited was formed in
1974, it did not commence operations until 1986, when the universities commenced
payment for educational copying.17 Copyright Agency Limited acts as agent for its
members and affiliated Reproduction Rights Organisations (RROs) overseas to
collectively administer and protect their copyright reproduction rights. Pursuant to
a notice in the Gazette, dated 13 June 1990, the Attorney-General declared
Copyright Agency Limited to be ‘the collecting society’ for the purposes of Part VB
of the Act for each owner of copyright in a work other than a work in a sound
recording or a cinematograph film.
In order to be declared an approved society, Copyright Agency Limited was
required to satisfy certain prerequisites set by the Attorney-General under
s 135ZZB(3) of the Act. In particular, the Attorney-General had to be satisfied that
CAL’s distribution rules complied with the Regulations to the Act (in particular, reg
23JM(1)(g) Copyright Regulations 1969 (as amended)). The effect of regulation
23JM(1)(g) is that Copyright Agency Limited can only distribute a share of the
distributable amount to its members. If the copyright owner or their agent declines
to join Copyright Agency Limited their potential share of the amount is held on
trust (Reg 23JM(1)(g)(ii)(A)&(B) Copyright Regulations 1969 (as amended)) until the
copyright owner joins Copyright Agency Limited or for a period of four years,
whichever occurs first (Reg 23JM(1)(i) Copyright Regulations 1969 (as amended)). If
the copyright owner or their agent does not join Copyright Agency Limited by the
expiration of the trust period their potential share will be returned to the
distribution pool.
In 1996, $12.4 million was declared by Copyright Agency Limited for distribution
and in 1997 $15.6 million was distributed. Since Copyright Agency Limited began
distributing in 1989 the total declared distributions have mounted to $55.8 million
(Copyright Agency Limited 1996, p. 1), which combined with the $15.6 million
distributed in 1997 brings the total to over $71.8 million (Copyright Agency
Limited 1997, p. 1).

Screenrights
Formerly known as the Audio Visual Copyright Society Limited, Screenrights is the
collecting society for film producers and distributors, script writers and music
copyright owners. Screenrights, established in 1990, administers the statutory
licence which allows educational institutions to copy radio and television
broadcasts, and more recently other uses of audiovisual material. Since 1990,
Screenrights has collected more than $50 million for distribution to copyright
owners (Screenrights n.d.).

Australian Performing Rights Association

17
See University of New South Wales v Moorhouse [1975] 133 CLR 1; Haines v CAL [1982]
64 FLR 184; and CAL and Department of Education [1985] 59 ALR 172. These cases set the
rate for equitable remuneration for copying under the statutory licences.
19
 Copyright in Universities

The Australian Performing Rights Association licenses the broadcast, public

performance and cable transmission of live and recorded musical works and
accompanying lyrics. APRA’s members consist of composers and music publishers.

Australasian Mechanical Copyright Owners’ Society

Australasian Mechanical Copyright Owners Society licenses certain recording of
music and lyrics, and photocopying of sheet music by schools. AMOCS’ members
are music publishers.

Phonographic Performance Company of Australia (PPCA)

PPCA licenses the broadcast and public performance of sound recordings (which
are protected separately to any music and lyrics on the recording). The members of
the PPCA are owners of copyright in sound recordings, principally record
companies.

VI$COPY
VI$COPY, established in October 1995, is the collecting society for the visual arts.
This society licenses the reproductions of visual or graphic artistic works on behalf
of visual artists, including craft workers, photographers, sculptors, multimedia
artists and designers. The society is establishing a schedule of recommended fees
for various types of uses, such as the use of book covers, posters and multimedia
products.

20
 Copyright in Universities

3. Ownership of copyright works

created within universities

3.1 Introduction
In the past, universities have shown little interest in the question of who owns
copyright in the works created within universities. In recent years, however, this
situation has changed. As greater sums of money are invested in new modes of
delivery (notably online) and as increased pressure is placed on universities to
become financially more self-sufficient, universities throughout Australia have
taken a more active interest in the ownership of copyright.
In response to the growing interest in ownership of copyright, in 1993 the
Australian Vice-Chancellors’ Committee issued a discussion paper on ownership of
intellectual property in universities (revised in 1995), the impetus for which was the
request for advice from universities on how to deal with issues concerning
ownership of intellectual property.18 The National Tertiary Education Union
(NTEU) also played an active role in the debate over ownership and produced a
model intellectual property policy for universities to consider (National Tertiary
Education Union 1994).
The issue of ownership of copyright works in universities is a particularly complex
one. Much has been written on this area (e.g. see Monotti 1997; Monotti 1994;
Monotti 1997a; Monotti 1998) and the following is only a summary of some of the
problems facing universities with respect to ownership of copyright works created
within the university.

3.2 Rules of ownership

The general rule of copyright law is that the author of a literary, artistic, dramatic or
musical work is the owner of that work (s 35(2) Copyright Act 1968 (Cwlth)). This
means that works created by employees within the university will, at least as a
starting point, be owned by the creator of that work.
There are a number of different categories of creators within universities which
may be broadly grouped together as academics, general staff, students, visiting
scholars and consultants. The way in which ownership of copyright materials is
dealt with within a university is largely determined by the legal relationship the
university has with the particular creator in question.

18
It has been said that it was the ‘new intellectual property statute adopted by the University
of Melbourne on 22 July 1993 which crystallised debate as to the ownership of intellectual
property within higher education institutions’ (Australian Copyright Council 1997, p. 4).
21
 Copyright in Universities

In spite of the general rule that the author of a literary, artistic, dramatic or musical
work is the owner of that work, universities are able to claim ownership of works
produced within the university in the following ways:
• By virtue of the employment relationship (s 35(6) Copyright Act 1968 (Cwlth))
Where a work is made in the course of employment pursuant to a contract of
service, the employer is the owner of that copyright. The upshot of this is that
copyright in works produced by university staff in the course of their
employment will be owned by the university.
• By assignment of ownership (s 196(1), s 197(1) Copyright Act 1968 (Cwlth))
As copyright is personal property, the Copyright Act allows owners to assign
copyright in existing (s 196(1)) and future (s 197(1)) works to another person.
This means that it is possible for creators of works to assign copyright in the
work they generate to the university. Where this is done, it will normally be done
via the contract of employment.
• Commissioned works (s 35(5) Copyright Act 1968 (Cwlth))
Where a photograph,19 painting or drawing of a portrait or the making of an
engraving of another person is commissioned, the person who commissioned
the work is the owner of the copyright in that work. In relation to other works,
the copyright remains with the creator. This, however, is subject to an
assignment by contract. The issue of commissioned works, however, may
become increasingly important where computer programs, for example, are
commissioned for specific purposes.20
• Through the intellectual property policies or statues of the university
Each university in Australia has adopted intellectual property policies or statues
which attempt to govern issues relating to the creation and use of intellectual
property within the university.21 Whilst most university intellectual property
policies adopt a different approach, many attempt to claim ownership on the
basis of the Copyright Act or common law or attempt to make broader claims to
ownership. Given that the approaches differ from university to university, this is
a particularly complex issue.

3.2.1 By virtue of the employment relationship

As discussed above, where a work is made pursuant to the terms of employment,
the employer is the owner of that copyright (s35(6) Copyright Act 1968 (Cwlth)).
While universities have employment relationships with both their academic and
general staff, the relationship universities have with their students, visiting scholars
and consultants is a little more complex and unclear.

19
‘For a private or domestic purpose’: s 35(5) Copyright Act 1968 (Cwlth) as amended by
the Copyright Amendment Act (No 1) 1998.
20
The CCG report on Computer software protection (1994) recommended changes to the
Copyright Act that provided that where computer programs were commissioned, the
copyright should belong to the commissioner and not the creator. However, this
recommendation has not been incorporated into the Copyright Amendment Act (No 1)1998
(Cwlth).
21
For a detailed discussion of the differing intellectual property policies, see Monotti 1994.
22
 Copyright in Universities

3.2.1.1Academics
As academics are employees of the university, the university as employer becomes
the owner of copyright in works that are produced by the academic within the
course of employment (s 35(6) Copyright Act 1968 (Cwlth)). While universities have
the potential to claim copyright in the works created by academics, nonetheless,
there is a widely held view that academics are the owners of copyright in materials
produced by them. A number of reasons have been suggested for this.

The existence of an implied term that vests copyright in the academic

Whilst many of the terms of employment are expressed as written terms of the
contract, there are some terms which do not appear in the written document but
will be implied in certain circumstances. Terms may be implied into a contract by
virtue of the conduct of the parties, by accepted custom and practice in the
industry, or by virtue of what a reasonable person would have understood the
intention of the parties to be at the time of entry into the contract.22
General university practice has been such that universities have allowed academics
to exercise the rights of ownership of copyright in works created by them. In most
cases, academic staff have been and are free to contract with publishers without
intervention from their institutions. When academics move between universities,
they are free to take with them the teaching and research materials produced by
them during the period of their prior employment. As universities have traditionally
not claimed copyright in any of the works that their employees create, it has been
suggested that this gives rise to an implied term in academics’ contracts of
employment that vests copyright in the academic author (Noah v Shuba [1991]
FSR 15). An implied term which vests ownership of copyright in the academic
author may exclude the operation of s 35(6) of the Copyright Act which vests
ownership in the university as their employer.
The existence of the implied term has been confirmed by the Australian Vice-
Chancellors’ Committee when it was recognised that if universities have allowed
staff to hold themselves out to publishers or others as the owner of copyright in
certain literary works then over time it may have become an implied term that the
academics are the owners (Australian Vice-Chancellors’ Committee 1995, p. 23).
However such an implied term is less evident where literary works such as class
materials, reading guides and tutorial problems are concerned (Monotti 1997,
p. 717).
The implied term that vests copyright in the academic author is one which
universities may no longer accept for a number of reasons:
• universities must now pay the Copyright Agency Limited an amount per student
for copying from academic journals (the works are not profitable but cost the
university money to copy);

22
Terms may be implied on the basis of implied consent or acquiescence in a state of affairs
(Con-Stan Industries of Australia Ltd v Norwich Winterhur (Australia) Ltd [1986], 160 CLR
226, 236).
23
 Copyright in Universities

• universities do not want to extend the operation of such an implied term to

computer programs and electronic databases which are seen to hold value to the
university; and
• universities prefer to clarify ownership expressly rather than rely upon untested
implied terms to exert ownership (Monotti, A. 1994, pp. 351–352).
In order for universities to change the current practice, positive steps must be taken
by the institutions. Universities would need to more clearly define the duties of the
relevant staff, including an express provision in their contracts of employment that
makes it clear that the institution would insist upon ownership of copyright in
works created (Ricketson 1993, p. 6 cited in Australian Vice-Chancellors’
Committee 1995a; see also Australian Copyright Council 1997, p. 27). They would
also have to act in accordance with such an express provision and exercise control
over the works created.

Waiver
An alternate way in which universities may have relinquished their claim to
ownership as employer is that they have waived23 the benefit of s 35(6) of the
Copyright Act. This means that academics may prevent universities from exerting
rights of ownership over works created by them.
Universities may have waived their rights to copyright as there has been no
expectation that the material in which copyright may reside will be commercially
exploited for the benefit of the institutions. With the creation of potentially
worldwide markets for online courses, universities may now see the potential for
commercial exploitation of such materials. Accordingly instead of waiving rights of
ownership of copyright materials, they may seek to exert ownership over copyright
in the works created.

Scope of employment
A further ground upon which university ownership of copyright works may be in
issue is brought about by the difficulty of determining whether or not a work is
created in the course of an academic’s employment (Monotti 1997, p. 716). The
reason for this is that only those works created within the scope of employment will
vest in the employer (by virtue of s 35(6) Copyright Act 1968 (Cwlth)). In order for
universities to claim ownership of copyright in works created in the course of
employment, it must first be determined what falls within the scope of an
academic’s contract of employment. It seems clear that an academic works under a
contract of service and the issue in this context is one of whether the work is
produced in the course of employment (Monotti 1994, p. 347). Determining when
universities are rightfully able to claim copyright in works created and when
ownership is rightfully able to be claimed by the academic is a difficult and complex
issue.
As there is uncertainty as to what copyright materials may be claimed by
universities under the employment relationship, universities often attempt to clarify
the issues of ownership by contracting individually with academics. The Copyright

23
Waiver may be defined as the voluntary giving up of some claim or right.
24
 Copyright in Universities

Act provides for exclusion or modification of the employer ownership provisions

where the employer and employee contractually agree to the contrary (s 35(3)
Copyright Act 1968 (Cwlth).24
Terms of employment vary from institution to institution, but generally academics
are employed to carry out three distinct functions: teaching, research and
administration. Some universities believe that as employer they have the right to
claim ownership of publications and materials produced in pursuance of these
obligations.
Due to the uncertainty of the scope of an academic’s duties, many attempts by
universities to assert their claim to ownership over works produced by academics in
the course of their employment have met with strong resistance from the relevant
unions (Federation of Australian University Staff Associations 1990, p. 3). It
appears, however, that until this issue is tested in the courts the exact scope of an
academic’s duties, and thus the works which are produced within the scope of the
employment, will remain unclear.
As the approach of the universities differs depending on the type of work created
by the academic, it is necessary to examine the different types of works created by
academics in the course of their employment.

Scholarly works
Until now, universities have shown little interest in claiming ownership over
scholarly publications such as monographs and journal articles produced by
academic staff. These works have been seen to hold little commercial value to the
university and accordingly not worthy of the effort in managing ownership of the
works.

Teaching materials and lecture notes

As there is uncertainty as to the exact nature of an academics’ duties, many difficult
issues arise as to whether teaching materials and lecture notes are produced in the
course of employment. In part, this is because the academic’s contractual obligation
to teach may be construed both broadly or narrowly (Australian Copyright Council
1997a, p. 28).
On a broad view, academics are employed to teach and thus any materials created
in pursuance of this obligation will be owned by the employing institution (By
virtue of s 35(3) of the Copyright Act). On a narrower view, however, whilst an
academic is employed to teach, it is arguable there is no obligation upon academics
to produce teaching materials. Whilst there is an obligation on academics to give
lectures, there is no obligation to write lecture notes as such (Cornish 1992, p. 15).
Accordingly, if lecture notes or teaching materials are produced, it is arguable that
their production is beyond the scope of the academic’s duty as an employee. As
such, they would not be caught by the employer’s copyright.25

24
For a detailed analysis of the operation of s 35(3), see Monotti 1997.
25
‘The obligation to teach may not necessarily mean that the institution has copyright in the
academic’s teaching materials. On this narrow view an institution may need to rely upon a
contractual obligation other than the obligation to teach or to expressly provide for this in its
25
 Copyright in Universities

There seems to be clear authority for the narrow view that, in the absence of
express terms in the contract of employment, the person employed to give lectures
will own the copyright in those lectures.
Prima facie, I should have thought that a person engaged on terms which include
that he/she is called upon to compose and deliver public lectures or lectures to
some specified class of persons would in the absence of clear terms in the contract
of employment be entitled to copyright in those lectures. That seems to me both
just and commonsense. The obvious case to which much reference has been made
in the course of the argument is to the academic professions. Lectures delivered, for
example, by Professor Maitland to students have since become classical in the law.
It is inconceivable that because Professor Maitland was in the service at the time of
the University of Cambridge that anybody but himself, one would have thought,
could have claimed copyright in those lectures (Stephenson Jordan v McDonald &
Evans (1953) 69 RPC 18; Noah v Shuba [1991] FSR 15, 26).
Another potential problem with universities’ claims to ownership is that works such
as lecture notes, reading guides, overhead slides and class materials represent a
fundamental part of the academics’ knowledge and ‘stock in trade’ which they have
developed throughout their careers. If teaching materials are seen as part of the
‘stock in trade’ of an academic, attempts to claim ownership of teaching materials
by universities may be seen as an attempt at a restraint of trade against the
academic. However, it has been suggested that this argument would be probably
unlikely to succeed (e.g. see Monotti. 1997a).

Administrative works
Universities have shown little interest in asserting ownership of copyright in works
created by academics in their role as administrators. It is possible that, in the future,
works such as those produced in management roles may become more valuable to
the university and accordingly universities may seek to assert ownership over such
works.

3.2.1.2General Staff
For the purposes of copyright law, general staff who create copyright materials are
the authors of those works. However, as general staff are employees of the
university, copyright materials produced within the course of their employment will
be owned by their university.
As universities are becoming more competitive, systems in place within universities
which result, for example, in improved services for students, such as online
advanced timetabling and enrolment systems, may be considered as valuable assets
of the university. Training and development programs may similarly be viewed as
being worthy of exploitation.
In many cases, universities, may have lost the right to exert ownership over such
works due to the existence of an implied term that has seen general staff deal with

contracts of employment. Similarly with the creation of CD-Roms and disks for on-line
distribution, an institution may need to exert ownership through an implied term or through
express contractual arrangements.’ (Australian Copyright Council 1997a, p. 22)
26
 Copyright in Universities

their works as copyright owners. Due to lack of action by universities as to the

ownership of copyright of works created within the university, an argument on
behalf of general staff that the universities may have waived their right to
ownership of such works may also be successful (similar to that implied in an
academic’s contract of employment, as discussed in Section 3.2.1).
There may be cases where it is unclear as to whether works created by general staff
were created within or outside the scope of the duties of that particular staff
member. The scope of the staff members’ employment needs to be clearly defined
to assist in clarification of such ownership issues. Ownership of the copyright in
these works should be identified for the benefit of both the university as well as the
individual author.

3.2.1.3Students
The nature of the student’s legal relationship with their university is a complex one
and has been the subject of much commentary (e.g. see Monotti 1997a, especially
note 237; Monotti 1998). It is clear that as students are not in an employment
relationship with their university they own the copyright in works that they create in
the course of their research and studies at the university (s 35(2) Copyright Act 1968
(Cwlth)).

3.2.1.4Visiting scholars and consultants

As consultants and visiting scholars generally have no employment relationship
with their host university, like students they own copyright in works created whilst
at the host institution. As universities, however, take a differing approach to the
appointments of visiting consultants and scholars, it is likely that some universities
employ consultants for a short-term period, in which case the university as
employer may lay claim to copyright in the works created.

3.2.2 By assignment of ownership under contract

Another way in which a university may claim copyright ownership over works
created within the university is by assignment of ownership under individual
contracts. As copyright is personal property, the Copyright Act allows owners to
assign copyright in existing (s 196(1)) and future (s197(1)) works. Universities often
rely upon contracts of employment or they enter into specific contracts with those
in the university community to clarify issues of ownership of copyright in works
produced within the university.

3.2.2.1Academics
The status of the academic (in this context) depends upon the particular contract of
employment in question. While contracts of employment vary from university to
university, it is useful to distinguish between existing academic staff and those
recently appointed or those commencing employment in the future. The reason for
the difference is that until recently universities had little interest in copyright and, as
such, contracts of employment often remained silent on this issue. With the
27
 Copyright in Universities

universities’ new found interest in copyright, however, it seems that contracts of

employment signed in the future (or in the immediate past) may contain specific
provisions dealing with ownership of copyright.
Due to the uncertainty that surrounds the issue of which works are produced
within the academic’s contract of employment, it is often the case that the
university has sought to exert copyright ownership of works through specific
provisions contained in the contract of employment.
Some contracts of employment claim ownership over all works created and works
yet to be created. As previously stated, s 35(3) of the Copyright Act permits an
employer and employee to exclude or modify the operation of employer ownership.
However, the modification or exclusion can only be made in relation to copyright
in a ‘particular work’.26 Whether agreements in contracts of employment may be
made in relation to all future works created by academics has yet to be determined,
however it appears unlikely from a literal interpretation of the section that this
would be the case (see Monotti 1997). Whether or not academics assign their
ownership of copyright in works to universities, it is clear that universities may vest
copyright in its employees by way of assignment. Where universities have clear
ownership of copyright in works produced within a university, for example by
virtue of the employment relationship, they may wish to assign these rights to their
employees. This is clearly possible under the Copyright Act (s 196, s 197). However,
it has been suggested that the right to assign all future works (s 197) is not intended
to operate in an employment situation as s 35(3) is available to vest copyright in the
employee author. However universities may use s 35(6) to claim ownership of
future materials created by their academic authors but then s 197 to assign that
copyright back to the academic author for the purposes of carrying out their
academic duties (see Monotti 1997).

3.2.2.2Existing academic staff

Many existing academic staff have entered into contracts of employment that have
no reference to ownership of intellectual property, in particular copyright, created
during the contract of employment. Accordingly, there are often no grounds for the
university to claim copyright in materials produced in the absence of such terms
(Monotti 1997).27

3.2.2.3Recently/newly appointed academic staff

Universities that have become aware of the increasing potential for exploitation and
commercialisation of copyright often now include in new contracts of employment
express terms relating to ownership of copyright. This is a deliberate attempt to
clarify the ownership issue.
There are many and varied contracts of employment adopted by Australia’s
universities and it is beyond the scope of this report to examine this issue save for

26
For a detailed analysis of the operation of s 35(3) see Monotti 1997.
27
See also Stephenson Jordan & Harrison Ltd v MacDonald & Evans (1952) 69 RPC 10;
dicta in Noah v Shuba [1991] FSR 14, 26.
28
 Copyright in Universities

the purposes of illustration of the different position new staff may find themselves
in.28 Universities who include express terms in their contracts relating to ownership
of copyright will be in a better position to assert their claim to copyright in works
produced by those academics without fear of a defence of waiver or implied term
agreement. The university can not only enter into a separate agreement with each
new staff member to alter the initial vesting of copyright under s 35(3) but also to
exclude the operation of s 35(6) of the Copyright Act altogether.

3.2.2.4General staff
Unless universities have expressly provided for the ownership of copyright in a
general staff member’s contract of employment, the onus is on the university to
show that copyright works produced by general staff were produced in the course
of their duties. If there is any doubt as to the scope of a general staff’s duties, it
would be necessary for the university to have entered into specific contractual
arrangements to claim ownership over copyright works.

3.2.2.5Students
It is unclear as to whether enrolment at a university constitutes a binding contract
between the institution and the student such as to allow the university to claim
copyright ownership over works produced by a student whilst a student at the
institution (see Monotti 1998). Accordingly, it would be necessary to examine the
effect of each institution’s enrolment policy with the students to determine the
copyright ownership issue between the student and their university.

3.2.2.6Visiting scholars and consultants

Visiting scholars and consultants would have had to enter into contractual
arrangements with the university in order for the university to claim copyright
ownership over works produced during their time with the university. It would
seem that this is a fairly uncommon practice and accordingly it is not likely that
universities would have a claim to copyright of consultant’s works.

3.2.3 By commissioning works

Universities may claim ownership of certain works created within the university
where the work is commissioned. The fact that a work is commissioned for a fee or
some other benefit does not usually affect the rules of ownership. The author will,
in most cases, be the first owner of copyright. In the case of a photograph, portrait
or engraving, however, the commissioner of the work will own copyright in that
work.29

28
For a detailed discussion of the differing intellectual property policies, see Monotti 1994.
29
Except where the work is a photograph (for a private or domestic purpose), portrait or
engraving: s 35(5) Copyright Act 1968 (Cwlth) as amended by the Copyright Amendment
Act (No 1) 1998 (Cwlth).
29
 Copyright in Universities

3.2.3.1Academic staff
Copyright in most commissioned works will be owned by the creator of that work.
The ownership of copyright in a photograph, portrait or engraving commissioned
by the university for a fee or some other benefit will however lie with the university
(s 35(5) Copyright Act 1968 (Cwlth)).
In its Draft report on computer software protection, the CLRC recommended that the law
be amended so that copyright in a commissioned computer program would be first
owned by the commissioning client rather than the author. In the Copyright
Amendment Act 1998, however, there appears to be no mention of this suggested
change. Accordingly, unless the contract specifies otherwise, where a computer
program is commissioned, copyright remains with the author.

3.2.3.2General staff
Where universities enter into arrangements with their general staff whereby
photographs, portraits or engravings are specifically commissioned then the
university will own copyright in those works.

3.2.3.3Students
Universities may enter into arrangements with their students whereby photographs
(for a private or domestic purpose), portraits or engravings are specifically
commissioned, in which case the university will own copyright. Unless this is the
case, however, the students will own the copyright in the works.

3.2.3.4Visiting scholars and consultants

It is likely that visiting scholars and consultants will retain copyright in works they
create while with the university, unless the work is a photograph, portrait or
engraving commissioned by the university, as has been discussed above.

3.2.4 Ownership through the intellectual property

policies of the university
The other way in which universities may claim ownership of works created within
the university is through the university’s intellectual property policies or statutes.
Each Australian university adopts a policy to vest copyright in a broadly defined
range of existing and future scholarly works in the author (Monotti 1997, p. 715).
As the nature of the intellectual property policies varies greatly between the
universities, it is difficult to characterise them accurately.30 Having said this, two
features of the intellectual property policies stand out:
• the university re-asserts ownership of intellectual property under the operation
of the statutory and common law provisions; and

30
For a detailed examination of the intellectual property policies of the universities, see
Monotti 1997.
30
 Copyright in Universities

• the university claims ownership of intellectual property in a number of

additional circumstances, referred to as ‘extended ambit claims’ (see Monotti
1997a).
A number of grounds have been suggested as supporting such ‘extended ambit
claims’ to ownership. These are ‘substantial use of institutional resources and/or
services; use of pre-existing intellectual property owned by the organisation;
management of intellectual property generated by a number of staff and/or
students; and use of institutional funding or funding obtained by the institution’
(Australian Vice-Chancellors’ Committee 1995a, pp. 9–10). However, it appears
doubtful that these ambit claims are valid unless they are dealt with on a contractual
basis or where the intellectual property statues of the university are binding upon
staff.

3.2.4.1Status of the intellectual property policies or statutes

One of the most important issues that arises in this context is the impact that the
intellectual property policy has upon members of the university. While many
intellectual property policies claim to assert copyright over works created by their
staff within the university, there is uncertainty as to whether the intellectual
property policies or statues of a university form part of the contract of
employment.
An argument may be raised that the intellectual property policy or statues of a
university, having the force of law, apply automatically to contracts of employment
of staff within the university. Therefore an examination of whether intellectual
property policies or statutes form part of the contract of employment of individual
staff members is not necessary (see Australian Copyright Council 1997a). However,
as s 35(3) of the Copyright Act only allows for the modification of the employer’s
ownership provisions ‘by agreement’, it has been pointed out that it is unlikely that the
unilateral passing of intellectual property statutes would constitute an ‘agreement’
for the purposes of s 35(3) as there is no bi-lateral consent between the parties
(A. Stewart acknowledged in Australian Copyright Council 1997a, p. 25).
Where the intellectual property policy of a university asserts ownership over the
intellectual property, academic staff may find provisions in the intellectual property
policy that cover the copyright ownership issue. In many cases, however, it is
unlikely that the intellectual property policies or statues of a university form part of
the contract of employment. The reason for this is that many of the intellectual
property policies were passed after many staff were employed by the university
(Monotti 1997a, p. 459). Where this is the case, the intellectual property policies do
not form part of the contract of employment.
Universities whose policies do not form part of the contract of employment would
most likely have to vary the contract of employment already in place to exert any
express right to ownership of copyright. Whether the university is able to vary the
duties of the academic employee once already employed is a vexed issue. There has
been some suggestion that any changes must take place through individual
contractual agreements or through enterprise bargaining mechanisms (Monotti
1997a, p. 458).
The Australian Vice-Chancellors’ Committee has suggested that, for new staff
members, the university’s intellectual property policy or statue ought to be annexed
31
 Copyright in Universities

to the letter of offer and therefore become part of the contract of employment
(Australian Vice-Chancellors’ Committee 1995a, p. 11).
It seems clear that, unless the intellectual property policies form part of the contract
of employment or it can be shown that the university statues are binding upon each
and every academic, the extended ambit claims are beyond the rightful claim of
universities.

3.2.4.2Additional problems
Attempts by universities to use their intellectual property policies to claim
ownership of copyright in materials beyond that which is given either by the
Copyright Act or by the common law may run up against the problem that they are
invalid. As many enabling statutes make no reference to intellectual property, it has
been suggested that attempts by universities to claim ownership over intellectual
property are ultra vires the powers of the university set out in their enabling statues
(Monotti 1997a, pp. 445–446). Another question about the ability of university
intellectual property policies to bind staff is that attempts to claim ownership of
copyright in works created within the university are, because of the potential for
inconsistency between the State law (the university statute) and the Commonwealth
law (the Copyright Act), constitutionally unsound (Monotti 1997a, pp. 425, 445–446).
Where there is an inconsistency between a Commonwealth and a State law, the
State law is invalid to the extent of the inconsistency (s109 of the Constitution of
Australia (Cwlth)).

3.2.4.3Academics
The question of whether or not the universities’ intellectual property policy impacts
upon particular academics varies not only between institutions but also within
institutions. In order to determine the impact that intellectual property policies have
upon a particular academic, it is first necessary to ask whether or not the contract of
employment in question specifically refers to the intellectual property policy. If not,
it is unlikely that the intellectual property policy forms part of the contract of
employment.
If the contract of employment specifically refers to the intellectual property policy,
then it is more likely that the intellectual property policy will have formed part of
the contract of employment. Where the intellectual property policy does form part
of the employment contract, the issue then arises: what claims does the intellectual
property policy make? The university may already have the right to ownership by
law; however, if the university makes extended ambit claims then there may be no
valid grounds upon which this is based, due to the possible arguments of ultra vires
or that the claims are unconstitutional as discussed above. It is not necessarily clear
that universities can bind persons to the provisions of their intellectual property
statutes or policies unless they form part of the contract of employment (Monotti
1997a, pp. 455). Given that many of the policies were drafted in recent times, well
after academics have commenced employment, it is unlikely that they validly form
part of the staff member’s contract of employment.

32
 Copyright in Universities

3.2.4.4General staff
The impact that the intellectual property policies have upon general staff is much
the same as that which applies to academic staff described above.

3.2.4.5Students
A number of models have been adopted by universities to deal with the intellectual
property generated by students (Monotti 1997a, pp. 442),31 all of which recognise
the rights of the students to claim ownership of the intellectual property they
create.
An issue that arises in this context is whether the institution can make ‘extended
ambit claims’ over student-created works, where students obtain intellectual
property rights over and above what may be expected from the standard provision
of teaching and resources. For example, science students may use inventions
patented by the university to develop a superior invention. Similarly, computing
students may use expensive equipment to develop programs (Australian Vice-
Chancellors’ Committee 1995, p. 18). In response the Australian Vice-Chancellors’
Committee suggests that universities may be able to justify a claim for ownership of
student intellectual property where the generation of the property involved a
substantial use of the universities’ resources (see Australian Vice-Chancellors’
Committee 1995a, p. 19, for further justifications).

3.2.4.6Visiting scholars and academics

While some universities extend claims to intellectual property created by visiting
scholars, others are silent on this issue. Thus the approach will very much be
determined by the institution’s policy (see Monotti 1997a).32

31
For a detailed analysis of this issue, see Monotti 1998.
32
For example, Griffith University’s Intellectual Property Policy sub1(1)(a) defines ‘staff
member’ to include any person appointed to a visiting honorary or sessional appointment.
33
 Copyright in Universities

3.3 Recommendations

3.3.1 Introduction
The ownership of copyright works created within the university raises many
complex and contentious issues. The increasing cost of subscriptions to academic
journal articles and the ever-increasing payments to collecting societies for copying
from such journals is causing universities to re-consider current practices with
respect to copyright ownership in universities.33
To obtain greater control over copyright and to reduce the spiralling costs of use,
universities should join together to address the issue of ownership of copyright
works produced within universities. It is also important to consider forging links
with universities overseas, particularly those in the United Kingdom and the United
States. A re-examination of the issue of who owns copyright works produced within
universities may assist in addressing the issue of costs associated with use of
copyright works in universities.
There are a number of models of copyright ownership in universities which may
enable universities to regain control of copyright works produced within the
university sector. While some of these options may be complicated by disputes
between university management and unions, it is nevertheless worthwhile
examining alternatives to the current arrangements that focus on the access to and
dissemination of information and ideas, rather than the commercial aspects of
copyright ownership:
• creators retain ownership of copyright works;
• creators share copyright ownership with their university; and
• universities exert their right to ownership of copyright works produced in the
course of employment.
Each will be examined in turn.

3.3.2 Creators retain ownership of works

One way in which universities may be able to assert more control over the works
created within the university sector is to allow the current practice to continue,
whereby creators employed in the university sector exercise rights of copyright
ownership in the works they create. This approach would obviously be supported
by academics (and their unions) who see retention of their copyright as a basic right

33
‘Articles [in comparison with books and materials produced for teaching] . . . cause most
controversy due to the operation of the compulsory licensing scheme allowing copying of
educational material. If the copyright owner of academic articles written for periodical
publication is the employer institution, the licence fees collected for educational copying will
be returned to the institution, having had the Copyright Agency Limited’s administrative
expenses deducted and adding to the expense of tertiary education in the meantime.’
(McKeough 1997, p. 93)
34
 Copyright in Universities

which they hold near and dear to them. As has been said, ‘to lose copyright in their
writings would mean that academics would be likely to lose one of their few
remaining sources of autonomy and fulfillment within the academy’.34
Where employees retain copyright, licences could be granted to publishers to
publish the academics’ works on the condition that a licence is given back to the
institutions which allows for use for educational purposes (Monotti 1994, pp. 358,
370). This would surely assist in reducing the current monies paid to copyright
owners for the use of academics’ works.
In order to ensure access and use of works at a reasonable level, it would be helpful
if the employing institution entered into licence agreements with the creator which
gives the university certain rights of use—without obtaining permission from the
copyright owner. Some of the rights of use could include:
• on a limited non-exclusive basis, the right of the author’s peers and students to
make copies of the work to use in teaching, scholarship and research;
• the right to control where the university’s name or logo is displayed in
association with the work;
• the right to borrow portions of the work for use in compilations or other
composite works; and
• the right to reproduce the work for uses directly relating to the advancement of
the mission or maintaining the culture of the university (Consortium for
Educational Technology for University Systems 1997, pp. 22–23).

3.3.2.1Potential problems
There are a number of problems with staff exercising ownership rights over their
copyright works.
One problem with staff ownership of copyright is that, while many staff are
currently allowed to exercise copyright ownership in the works they create, often
the management of those rights does not guarantee optimal access to those works.
In part this is because many of the copyright decisions made by academic staff
often ignore complex nuances associated with copyright, either because copyright is
not understood or it is seen purely in terms of the potential financial benefits that it
may generate (Consortium for Educational Technology for University Systems
1997, pp. 6–7).
Another problem is that copyright is all too frequently assigned to publishers
without the author’s having reserved rights to future uses, such as the incorporation
of elements of a copyrighted work into his or her next work or the photocopying of
the author’s journal article, even for his or her own teaching and research
(Consortium for Educational Technology for University Systems 1997, pp. 6–7).
Given the pressure to publish, when faced with an option of assignment of
copyright or non-publication, most academics will assign away their rights to the
publisher. One of the consequences of this is that revenue from the sales of many
academic works, notably research articles, often flow to third parties (such as

34
Unsourced quote attributed to Margaret Thornton in Saunders 1993, cited in Australian
Copyright Council 1997a, p. 45.
35
 Copyright in Universities

publishers), much to the frustration of universities. As a result of these practices,

universities often then find themselves in the undesirable position of having to pay
for the works created by academics, in the form of subscription fees, royalty
payments, and other current and future costs (Consortium for Educational
Technology for University Systems 1997, pp. 6–7). This will become more and
more apparent when considering the potential licence fees copyright owners are
suggesting for digital copying of copyright works.
If academics and other university employees were to retain copyright ownership of
their works, they would need to be re-educated about the importance of the cost of
copyright to the university. Universities must persuade them to examine publishing
contracts more carefully and to be less cavalier to assigning their rights to
publishers. In many universities, information, discussion, involvement and support
(through standard contracts and licences, information about academic publishing
and publishers) is needed to change current practices of staff, particularly academic
staff, with respect to copyright. Such programs would ‘enable more thoughtful
stewardship of academics intellectual property . . . An informed author base is the
first critical step in making transitions into the future, when entirely different means
of handling copyrights may, indeed, prove desirable’ (AAU Task Force on
Intellectual Property Right in an Electronic Environment 1994, p. 24).

3.3.3 Creators share copyright ownership with their

university
Another means by which control may be taken over copyright in the university
context is for universities and their staff to share copyright ownership in works
created within the university. As has been suggested: ‘[o]wnership of copyright is
not an all or nothing proposition. Rather the sets of rights that belongs to the
owners of intellectual properties may be allocated so as to optimally support the
mutual interests of the university, faculty, staff and students’ (Consortium for
Educational Technology for University Systems 1997, p. 4). This would have to be
achieved through contractual means. Such contracts would have to be negotiated
carefully to ensure a fair balance between the universities and the academic creator
while maximising the access and dissemination of the copyright work.
Joint ownership of university creations would increase the bargaining power of
individual staff and institutions alike. In so doing, it would enable academics and
universities, when dealing with publishers, to achieve a more balanced publishing
arrangement, whereby copyright is retained and licenses are granted for the
publication of the copyright material. It seems that publishers are not as adverse to
licence arrangements as many may assume. For example, Reed-Elsevier, a Dutch
company that is the biggest commercial publisher of scientific journals, has agreed
it can work with licences from authors, rather than demanding that they transfer
full copyright.35
Whoever owns the copyright, it is generally acknowledged that the creator of the
materials should retain some benefits from the exploitation of the work.
Universities, having paid little attention to copyright works, have in effect waived

35
Publish Online or perish 1998, p. 4.
36
 Copyright in Universities

any rights to royalties through acquiescing to the current practice.36 Academics

should, as is presently the case, retain rights to royalties from copyright works
created by them. Many academics see their royalties as a necessary adjunct to the
somewhat meagre academics salaries.
The Australian Vice-Chancellors’ Committee has suggested that ‘even if universities
may exercise ownership of intellectual property rights they may address the interests
of authors and creators by granting a ‘fair share’ in the commercial exploitation of
the intellectual property’ (Australian Vice-Chancellors’ Committee 1995a). NTEU’s
Model Intellectual Property Policy suggests: ‘after deducting reasonable costs of
protecting marketing and administering the intellectual property policy, net
revenues received by the university must be distributed as follows:
Annual new revenue Originator Appropriate unit University
(e.g. school,
department)
$0–15 000 100% 0% 0%
$15 000–50 000 60% 20% 20%
$50,000-$100,000 50% 25% 25%
$100,000+ 40% 30% 30%
Where more than one originator is involved they must determine how the
originator’s share of annual net revenue is to be divided between them and inform
the Intellectual Property Officer of their decision.’ (National Tertiary Education
Union 1994, p. 4)

3.3.4 Universities exert their right to ownership of

copyright works produced in the course of employment
Another way in which universities may be able to regain control of copyright works
is for universities to claim ownership of copyright in works produced in the
university.
While university management has shown little interest in exerting ownership over
copyright in works produced within the university, the perceived increase in value
of copyright may change current practices, if they have not been changed already.
The costs associated with use of copyright works, which is expected to spiral with
digital works, is perhaps a more important reason for a change is the approach to
ownership of copyright works. So long as universities managed their copyright
more equitable and efficiently, works in which copyright subsists could be made
more widely available.
However, it has been recognised that universities ‘will not stand to gain much by
the exploitation of most copyright material which is created by staff, as the costs of
exploitation would outweigh the returns . . .’ The Australian Vice-Chancellors’
Committee notes that, although there may be situations where the creation of

36
The Australian Vice-Chancellors’ Committee seems not to have taken exception to the
collection of royalties by academics who have stated that there are grounds to regard it as
‘a reasonable adjunct to salary’ (Australian Vice-Chancellors’ Committee 1995a, p. 25).
37
 Copyright in Universities

material in the course of clear duties under a contract of employment would ‘incline
the institution to insist upon the ownership rights’, ‘there may be situations where
[a university] will be prepared to waive or vest those rights in favour of staff’
(Australian Vice-Chancellors’ Committee 1995a, p. 9). These situations are noted to
include situations where ‘there is no expectation that the property will be
commercially exploited for the benefit of the institution’ and where ‘the institution
decides . . . that it will not expend funds or resources on registering or developing
the property’ (Australian Copyright Council 1997a, p. 36).
It has been a commonly held view that universities are defenceless against the
increasing cost of use of copyright works; for example, it has been said:
. . . the problems posed by copyright are far from straightforward. In the research
arena, major publishing houses are dictating price, packaging and usage of
electronic journals in ways which alter the traditional patterns of purchasing and
access within universities, and Australian universities are not in a powerful
position to exert purchasing leverage. (Coaldrake 1998, p. 10)
However this may not necessarily be the case. Universities that have copyright
ownership over academic works would have increased bargaining power to ensure
better rights for use within the university sector. This would enable universities to
negotiate with publishers to ensure a licence back for provision of works for
educational purposes within the university.
Some universities have attempted to claim copyright ownership over all works
produced within the university; however, these claims have been shown to be
somewhat dubious and without legal foundation (Monotti 1994, p. 358).37 Some
universities, while claiming copyright in materials produced by an academic during
their contract of employment, grant a licence back to the academic to use those
materials for the purpose of teaching and research whilst in the institution.
An approach taken in the US which may be worth consideration is that explained
by Crews:38 that by requiring all authors of articles to assign copyright to the journal
itself,
not to hoard them or to sell them, but instead to assure that they could be made
as widely available as possible . . . We then made a contractual commitment to
include the following statement in the Indiana Law Review itself:
Copyright 1995, the Trustees of Indiana University. Except as may be
expressly provided elsewhere in this publication, permission is hereby granted to
reproduce and distribute copies of individual works from this publication for non-
profit educational purposes provided that copies are distributed at or below cost,
and that the author, source and copyright notice are included on each copy. This

37
The Australian Vice-Chancellors’ Committee has suggested that it would be desirable to
amend the Copyright Act to provide, in the same way as newspaper proprietors are singled
out as the first owners of copyright in works produced by their employees (Australian Vice-
Chancellors’ Committee Submission 3.3, p. 5). However, the Australian Publishers’
Association strongly opposed such a move (see Australian Publishers Association Submission
4.5).
38
The editor of the Indiana Law Review and Director of the Copyright Management Centre
Indiana University – Purdue University.
38
 Copyright in Universities

permission is in addition to rights of reproduction granted under Sections 107,

108 and other provisions of the US Copyright Act.’
The American Libraries Association has begun to include similar, although
shorter, statements in many of its publications . . . This ensures that the works
are as widely disseminated as possible. (Crews 1995, p. 3)
If universities were able to assert ownership over academic works created within
their university, they would have increased bargaining power to ensure better rights
for access and use within the university community. This may help to overcome the
increasingly common problem many academics are faced with when attempting to
negotiate with publishers over the assignment of copyright, whereby if they do not
assign copyright, their work will not be published. A single academic is in a weak
bargaining position and has little chance of changing the standard publishing
contract. This is particularly the case with academics who do not have an
established reputation. However, universities negotiating together as a collective
may be able to obtain a more balanced publishing contract that reflects the
universities’ need for use of their academics’ works at reasonable costs.
Where a university owns copyright in works created, the author of those works
would be well advised to seek an agreement with the university which licenses to
the creator the ability to exercise rights, without obtaining permission from the
university owner, such as:
the right to make copies of the work to be used in teaching, scholarship and
research; the right to borrow portions of the work for use in compilations or other
composite works; the right to make derivative works, such as videotaped version,
film scripts etc; the right to alter the work, add to the work or to update the
contents of the work; the right of portability ie the right to take the work to, and
use the work with, a new employer; the right to use the copyright work for
teaching, scholarship or research by colleagues or students in one’s own
department, on one’s own campus across the campuses of a larger university.
(Consortium for Educational Technology for University Systems 1997, p. 22)

3.3.4.1Potential problems
While there are obvious benefits to university ownership of copyright works, it is
not without its problems. Many academics would agree that ‘the attempt to divest
academics of their ownership rights to course materials is fraught with legal moral
and practical difficulties’ (Alexandra & Miller 1996, p. 3). While initially ownership
of copyright by universities would cause considerable concern to academics, if the
underlying purpose of such ownership was to ensure greater access to academic
works and at the same time reducing the huge costs currently associated with
copyright, many academics may be persuaded to see the benefit of university
ownership.
A potential problem with university ownership is the fear that universities may use
copyright ownership as a way of censoring academic works. Situations may arise,
for example, where a university that owns copyright may decline to license a work,
or may limit a licence, for reasons which are unrelated to the actual creation of the
work. There have been instances where universities have suppressed publication of
academics’ work where the university has seen the publication of the work to be
detrimental to their goals or the work is considered to be controversial. Such
39
 Copyright in Universities

possible restriction of academics’ right to free speech would obviously be a concern

to academics and their unions.39 Other reasons for the restriction of publication
may hinge on the need for privacy, confidentiality, or the protection of a
competitive advantage.40 Matters such as these could be addressed by academics by
way of contracts negotiated through their relevant unions.
Another potential problem with university ownership of copyright arises from the
fact that ownership carries with it certain responsibilities that may be unpopular,
difficult and time-consuming to administer. For example, if staff adhered to the
principles of copyright law and sought permission whenever they updated,
amended or reproduced works, it would result in a deluge of requests for
permissions of copyright, which would place unacceptable burdens on the staff
given the role of copyright management (see Monotti 1997, p. 716).
A further problem posed by university ownership of copyright is caused by the
constant movement of academics from institution to institution. For example, if a
university owned copyright in course materials created by a particular academic, and
the academic moved to another institution, the academic would have to obtain
permission from the university to reproduce that material. The administration
necessary to facilitate such approvals would be an unwelcome drain on university
resources.
In the US, a model policy covering faculty publications in scholarly journals has
been supported by a range of university librarians and university managers.41 This
policy calls for university ownership of copyright in the research articles written by
their staff. The advantage to universities of this would be that their libraries
presumably would not have to pay royalty fees for copies of articles controlled by
the consortium. Nor, presumably, would they have to subscribe to the journals that
publish the articles in question (Henderson 1996).

3.3.5 University as publishers?

Where universities own copyright in academic works, they may see benefits in
publishing the works themselves. The development of electronic environments for
the collection and distribution of information may provide universities with an
opportunity to develop alternatives to the current commercially dominated system
of information creation, distribution and use. To this end, universities are currently

39
In their recent Code of Ethics the National Tertiary Education Union (1998) pointed out
that the ‘principle of intellectual freedom is of central importance. Intellectual freedom is an
individual and social good which is desirable both in itself and as a means of gaining and
disseminating knowledge.’
40
Whilst any such limitations are beyond the scope of copyright law, it would be strongly
recommended that these possible limitations be disclosed during the agreement process
(see Consortium for Educational Technology for University Systems 1997, p. 22).
41
Ranging from the relatively informal Triangle Research Libraries Network (TRLN) to the
well-established Association of Research Librarians (ARL) and the American Association of
Universities (AAU). This was introduced as a means of remedying the problem of the
‘horrendous level of subscription cancellations forced upon impoverished academic
libraries’ (Henderson 1996).
40
 Copyright in Universities

exploring the feasibility of forming electronic text centres which would digitise
available scholarly information and make it available to scholars over computer
networks (e.g. see the ANU Network Information Forum no. 1: electronic
publication of the ANU’s research and teaching output (23 July 1996) and no. 2: a
virtual university (6 September 1996).
As has been suggested:
the solution will come when we have an information network maintained by the
academic community that encourages the widest possible dissemination of
scholarly work at the lowest possible cost to the universities. To create such a
network, the academic community must move more aggressively into electronic
publishing. The community must experiment with new forms of journals and
new models for cost recovery. (AAU Task Force on Intellectual Property Right
in an Electronic Environment 1994, p. 31; see also Denehy 1995)
It has also been suggested that:
It is natural to consider alternative publication and distribution methods,
especially since academic authors currently receive little or no compensation for
assigning their rights in an article to a publisher. In fact in some disciplines some
authors must even pay charges in order to get a work published. University
libraries are faced with repurchasing the scholarly articles of their own faculty
authors, often at greatly inflated prices. The increase in the number of scholarly
journals published, escalating prices, the declining value of the dollar on
international markets, and static budgets in research libraries mean that few new
journal titles are being added to library collections, and many subscriptions have
been cancelled in research libraries throughout the country. Thus, academic
institutions are re-examining the current situation and considering whether
universities themselves might become publishers by electronically disseminating
their faculty authors’ works in a networked environment. (Gasaway 1995,
p. 681).
There has already been a move towards the idea of a consortium of universities
acting as publishers of academic works (e.g. Australasian Universities On-Line).
However, the future of such a project is still in the planning.
The idea of the university as publisher is admittedly not a new one. However, in the
present environment, it is certainly worth re-examining this as an option.
Universities are already publishers of sorts. Many may not recognise the role they
already have in publishing, ranging from the informal publications such as academic
calendars, brochures, teaching materials, anthologies etc. to the formal publications
such as monographs and journals. However, as has been noted:
[the] history of universities in print-based publishing is patchy. The experience of
university presses, in particular the closure of the ANU press and Sydney
University Press, is significant. UQP and Melbourne University Press depend
in varying degrees on direct subventions, philanthropic income, and campus book-
shop sales to remain viable . . . On the other hand Oxford and Cambridge
University Presses, and several commercial publishers, have successfully published
academic work in Australia. (Spearritt & Thomas 1996, p. 30)
However as has been noted:
Under a traditional publishing model, the author of a creative work needed to see
out a sponsor with deep enough pockets to edit, typeset, publish, distribute and
41
 Copyright in Universities

market the work. Not coincidentally, such publishers also had the resources to
manage licensing of the work, as well as to police infringement. This model is
now changing drastically in an age of desktop publishing, electronic distribution,
and self-publishing via the Internet. Digitali[z]ation, by eliminating the need for
printing on physical media, has reduced the need for a deep-pockets publisher.
However, authors who choose to self-publish will generally lack the resources to
license, police and enforce copyright. In academia, one candidate to fill the
licensing and policing role formerly occupied by publishing houses is the
institution itself - the institution may potentially have the deep pockets that the
individual faculty member lacks. (Burk 1997, p. 16)

3.3.5.1Potential problems
Given the past history of universities as print publishers, there may be legitimate
concerns about universities moving into the role of publisher. It has also been
suggested that academics may be reluctant to publish in electronic format. This may
change, however, if university management were to recognise and support such
moves in the hiring, promotion, tenure and research committees and research
organisations (Barwell 1995)42.
Universities, if joining together with a view to publishing the works of their
employees, would also have to be conscious of the fact that such actions may be
seen to be anti-competitive.

3.3.6 Conclusion
While the ownership models presented above may not be the panacea that
academics and university management are looking for, it is clear that new
approaches to copyright ownership are needed. In particular, considering the vast
amount of money that is paid by the university sector to collecting societies for the
use of copyright works often produced within universities, for there to be a
reasonable future for universities, a new approach needs to be taken.
A re-consideration of copyright ownership may help avoid the animosities and
misunderstandings that often arise amidst discussions and debates over the
ownership of copyright in the university context. Such debates should be steered
away from the question of ownership and related economic issues that not only
unduly monopolise discussions about copyright but also serve to distract attention
away from what most would regard as the more important issue—namely, the
pursuit of knowledge (see Consortium for Educational Technology for University
Systems 1997, p. 2).

42
This is a concern shared by the relevant unions (see National Tertiary Education Union
Submission 3.9).
42
 Copyright in Universities

4. Universities’ use of works protected

by copyright

4.1 Introduction
Copyright materials are used in universities in a variety of ways. Universities and
their students, teachers and researchers frequently use works from articles, books
newspapers, CDs, videos, microfilms and multimedia. Moreover, universities
libraries not only share copies of materials with other libraries, they also make
copies for their readers, as well as for the long-term storage and preservation of
works. As universities are extensive users of copyright materials (produced not only
within the university but also outside the university), use of copyright material has
always been an important issue for universities.
Copyright owners have extensive rights to exploit the works owned by them. This
means that they can prevent uses of their works made by others unless the use is
provided for under the Copyright Act 1968. In order to determine what uses a
university may legitimately make of works currently protected by copyright law, it is
necessary to consider two issues:
• What rights do copyright owners have in relation to their works?
• What are the circumstances in which the university may legitimately make use of
copyright works?
Each of these issues will be addressed in turn.

4.2 Rights of copyright owner

4.2.1 Current rights

Copyright owners have the exclusive right to do all or any of the following acts in
relation to a literary, dramatic or musical work:
(i) to reproduce the work in a material form;
(ii) to publish the work, to perform the right in public;
(iii) to broadcast the work;
(iv) to cause the work to be transmitted to subscribers to a diffusion service;
(v) to make an adaptation of the work;
(vi) to do, in relation to a work that is an adaptation of the first-mentioned work,
any of the acts specified in relation to the first-mentioned work in sub-
paragraphs (i) to (v) inclusive (s 31 Copyright Act 1968 (Cwlth)).
43
 Copyright in Universities

The Copyright Act also gives copyright owners exclusive rights to do a number of
things in relation to sound recordings, cinematograph films, television broadcasts
and published editions of works. These include the right to make a copy of the film
or sound recording, to cause the recording to be heard in public, to broadcast the
sound recording or film (see s 85 Copyright Act 1968 (Cwlth) in relation to sound
recordings; s 86 in relation to cinematograph films; s 87 in relation to television and
sound broadcasts; and s 88 in relation to published editions of works).

4.2.2 Future rights

It should be noted that the rights which are given to copyright owners are likely to
be extended in the near future. It is likely that copyright owners will be given a new
‘communication to the public’ right.43 This right is intended to cover distribution
and reproduction of material online—e.g. via the Internet. The new right that is
likely to be granted to copyright owners will be discussed in more detail below (see
the discussion at section 5.1).

4.3 Use of copyright works

In situations where universities use a copyright work, to ensure that they do not
infringe, they must either obtain the permission of the copyright owner or ensure
that the use is permitted under the Copyright Act. A university’s legitimate use of
copyright works may arise in a number of ways:
• works in the public domain
• copying of an insubstantial part of a work
• fair dealing
• compulsory and voluntary licensing arrangements
• library copying provisions
• miscellaneous copying provisions
Each will be examined in turn.

4.3.1 Works in the public domain

It is important to note that not all works are protected by copyright. Works that are
not protected by copyright are free to be used by the public. Once the copyright
protection has expired (which is usually 50 years after the author’s death), that work
is said to move into the public domain, free for all to use. Many works used in

43
In the Federal Government’s Digital Agenda Paper, two rights were proposed: the
transmission right and the making available to the public right. However, the Government
recently indicated that the transmission right and the making available right will be conflated
into a broad ‘communication to the public’ right (see Attorney-General & the Minister for
Communications, the Information Economy and the Arts 1998).
44
 Copyright in Universities

universities have now moved into the public domain and accordingly they can be
copied and used without fear of infringing copyright.
It is useful to note that the European Union has extended the term of protection
for copyright works from life of the author plus fifty years to life of the author plus
seventy years (Article 1, Council Directive 93/98/EEC). This has the effect of
bringing some works from the public domain back under the protection of
copyright for a further twenty years. It is likely the US will follow suit in the near
future (see the Copyright Term Extension Act of 1997 HR 604 currently under
consideration). These changes may place pressure on the Australian Government to
extend the period of copyright protection.

4.3.2 Copying of an insubstantial part of a work

It is a basic principle of copyright law that a person will not infringe copyright if
they only take an insubstantial part of the work.44 In relation to university copying,
this means that insubstantial amounts of copyright works may be reproduced
without that use constituting an infringement of copyright. Nor does such copying
fall within the statutory licence (under Part VB) which means that it is not
remunerable copying.
What is ‘substantial’ in any particular case is a question of fact to be determined
having regard to all the circumstances. The concept of a ‘substantial part’ has been
defined by the courts with reference to the quality of the work taken, rather than
the quantity (see Hawkes and Sons (London) Ltd v Paramount Film Service Ltd [1934] 1
Ch 593; Walt Disney Productions v H John Edwards Publishing Co Pty Ltd (1954) 71 WN
(NSW) 150).

4.3.3 Fair dealing

4.3.3.1Introduction
Fair dealing45 is the right of the public to access copyright materials for the
purposes of ‘the preservation and promotion of learning culture, knowledge and
ideas’ (Copyright Law Review Committee 1996, p. 13). It allows ‘essentially non-
commercial uses of copyright materials for a limited number of approved purposes
in the wider public interests of informed discussion and the furtherance of
knowledge’ (Australian Vice-Chancellors’ Committee 1996a, p. 2).
It has been acknowledged that:
the ‘fair dealing’ exception to infringement of copyright is, and always has been, squarely
based on recognition of the paramount public interest in the copying or reproduction of

44
Section 14 Copyright Act 1968 (Cwlth) provides that the reference to the doing of an act
in relation to a work or other subject matter shall be read as including a reference to the
doing of that act in relation to a substantial part of the work or other subject matter.
45
It has been said that ‘the [Fair Dealing provisions] are fundamental to the free flow of
knowledge, ideas and information in this country, a matter vital to the political, intellectual,
economic and social life, as well as the education of all Australians’ (Mason 1997a).
45
 Copyright in Universities

copyright material for certain purposes such as research and study, criticism or review,
news reporting, court proceedings and the provisions of legal advice. (Mason 1997, p. 51)
The defence of fair dealing was first introduced in a statutory form in Australia in
the Copyright Act 1911 (Cwlth) but its existence was recognised at common law well
before this time.46
Fair dealing is also recognised at the international level. For example, the Berne
Convention (Article 9(2)) and TRIPS (Article 13) permit signatory countries to
provide limited exceptions to the exclusive rights of copyright owners. This is
subject to the rider found in Article 9(2) of the Berne Convention and Article 13 of
the GATT TRIPS agreement, which provides that exceptions to the copyright
owner’s exclusive rights must not unreasonably prejudice the legitimate interests of
rightsholders or conflict with the normal exploitation of the work.

4.3.3.2Current law
Under current law, the defence of fair dealing, for what would otherwise be an
infringing act, is permitted in four circumstances (Division 3 of the Copyright Act
1968 (Cwlth)):
• research and study (s 40, 103C );47
• criticism and review (s 41, 103A);
• reporting the news (s 42, 103(B)); and
• professional advice given by a legal practitioner or patent attorney (s 43(2)).
The fair dealing provisions requires that:
• the activity which is claimed to be a fair dealing has taken place within one of
the above specified purposes; and
• the dealing, for that purpose, be fair.

Specified purposes
The defence of fair dealing can only be relied upon where it is shown the use of the
work is done for one of the specified purpose. The terms most relevant to the
university sector, namely ‘research’ and ‘study’, have been given their ordinary
dictionary meaning.48

46
See for example, Whittingham v Wooler (1817) 2 Swans 428; 36 ER 679. The 1911 Act
provided for ‘any fair dealing with any work for the purposes of private study, research,
criticism review of newspaper summary’ (s 2(1)(i) Copyright Act 1911 (Cwlth)).
47
In 1976, the Franki Committee Report, Copyright Law Review Committee Report on
Reprographic Reproduction (1976) recommended substantial changes to the fair dealing
provisions. One of the significant changes was the removal of the requirement that a fair
dealing for the purposes of study had to be for ‘private’ study which enabled the reliance on
the fair dealing provisions for what has been referred to as ‘commercial’ research.
48
See De Garis v Neville Jeffress Pidler Pty Ltd (1990) 95 ALR 625. In this case, Beaumont J
relied upon the Macquarie Dictionary definition of ‘research’ (‘diligent and systematic
46
 Copyright in Universities

The dealing be ‘fair’

The second requirement that needs to be shown if the fair dealing defence is to be
relied upon is that the dealing be ‘fair’. It has long been recognised that it is very
difficult to determine what constitutes ‘fair’ dealing. It is a question of degree which
must be decided in all the circumstances of the case (Hubbard v Vosper [1972] 2 QB
84, 94).
Sections 40(2)49 and 40(3)50 sets out the matters which may be taken into account
when determining what constitutes fair dealing with a work.
Section 40(2)51 provides:
For the purposes of this Act the matters to which regard shall be had, in
determining whether a dealing with a literary, dramatic, musical or artistic work
or with an adaptation of a literary, dramatic or musical work, being a dealing
by way of copying the whole or a part of the work or adaptation, constitutes a
fair dealing with the work or adaptation for the purposes of research or study
include—
(i) the purpose and character of the dealing;
(ii) the nature of the work or adaptation;
(iii) the possibility of obtaining the work or adaptation within a reasonable
time at an ordinary commercial price;
(iv) the effect of the dealing upon the potential market for, or value of, the
work or adaptation; and
(v) in a case where part only of the work or adaptation is copied - the
amount and substantiality of the part copied taken in relation to the whole of the
work or adaptation.
Section 40(3) Copyright Act 1968 (Cwlth) provides:

enquiry or investigation into a subject in order to discover facts or principles’) and ‘study’
(defined as including (1) the application of the mind to the acquisition of knowledge, as by
reading, investigation or reflection; (2) the cultivation of a particular branch of learning,
science or art; . . . (3) a particular course of effort to acquire knowledge . . . (5) a thorough
examination and analysis of a particular subject . . . ), pp. 629–630.
49
In an effort to alleviate some of the uncertainty in relation to fair dealing, the Franki
Committee report in 1976 suggested that the Copyright Act be amended to provide
guidelines as to what may constitute a fair dealing. See s 7 Copyright Amendment Act 1980
(Cwlth).
50
In an attempt to provide further guidance to what constitutes a fair dealing, the Franki
Committee also recommended the introduction of a quantitative test which is now laid down
in s 40(3) Copyright Act 1968 (Cwlth).
51
It is thought that the list of factors in s 40(2) represent the sort of factors the courts took
into account when deciding cases, such as Beloff v Pressdam (1973) 1 All ER 241 and
Hubbard v Vosper [1972] 2 QB 84. See also Ricketson 1984, p. 243. For fair dealings with
respect to audio-visual works see s 103C(2) Copyright Act 1968 (Cwlth).
47
 Copyright in Universities

Notwithstanding subsection (2), a dealing with a literary, dramatic, or musical

work, or with an adaptation of such a work, being a dealing by way of the
copying, for the purposes of research or study:
(a)if the work or adaptation comprises an article in a periodical publication - of
the whole or a part of that work or adaptation; or
(b) in any other case—of not more than a reasonable portion of the work or
adaptation, shall be taken to be a fair dealing with that work or adaptation for
the purposes of research or study.
As no statutory guidance is provided as to the weight to be given to each of the
qualitative criteria listed in s 40(2), the courts are left with a discretion when
evaluating what constitutes a fair dealing.52
Section 40(3) provides that the copying of a whole or part of an article in a
periodical publication or in other cases a ‘reasonable portion’ within the meaning of
the Copyright Act53 shall be a fair dealing if the dealing is for research and study
(Griffith 1995, p. 12).

4.3.3.3Concerns with the current fair dealing provisions

There has always been tension between copyright owners and users as to what
constitutes a fair dealing. On the one hand, allegations are constantly made by
copyright owners that the copying that is done within universities exceeds that
which is provided for under the fair dealing provisions. In response, the university
community claims that much of the copying done for the purposes of the provision
of educational services is legitimately done under the fair dealing provisions. The
tensions are exacerbated by the advent of digital technologies.
A number of concerns have been raised about the operation of the fair dealing
provisions. The focal point of the debate has been the 1997 CLRC Fair Dealing
Issues Paper, which raised a number of concerns that relate to the operation of the
current fair dealing provisions.
The issues paper has stimulated a general debate as to the future of fair dealing. In
response, some have questioned the future of the fair dealing provisions. One of
the most vocal critics of fair dealing, Copyright Agency Limited, argues that the fair
dealing provisions should be replaced with a system of voluntary licensing. If this is
not acceptable, Copyright Agency Limited argues that a statutory licence should be

52
It has been said that ‘the principles laid down in the Act are broadly stated, be referenced
to such abstract concepts of ‘fair dealing’ (s 40) and ‘reasonable portion’ (s 49) and it is left
to the courts to apply those principles after a detailed consideration of all circumstances of a
particular case’ (per Gibbs CJ in University of New South Wales v Moorhouse (1975) 133
CLR 1, 12).
53
Section 10(2) Copyright Act 1968 (Cwlth) provides that where a literary, dramatic or
musical work is contained in a published edition of not less than 10 pages, 10 per cent of
the number of pages in the edition, or where the work is divided into chapters, either 10 per
cent of the number of pages or the whole or part of a single chapter of the work will be
taken to be a reasonable portion. This definition does not, however, limit the meaning of the
expression ‘reasonable portion’.
48
 Copyright in Universities

established for the copying which is presently done under fair dealing.54 More
specifically, Copyright Agency Limited has suggested that the Copyright Act should
clearly state that any copying for educational purposes may not be undertaken as a
fair dealing for research or study. Copyright Agency Limited further suggests that
the availability of a licence under which copying may be done be added to the
factors in to be taken into account s 40(2) in determining if the dealing is fair.55
The Australian Vice-Chancellors’ Committee strongly opposes this position. They
argue that the fair dealing provisions were developed at common law and were
included in the Copyright Act to ensure that an appropriate balance was drawn
between the rights of copyright owners and the right of the community to use
materials protected by copyright.56 It is argued that the educational community
require special defences, such as fair dealing, to ensure a proper balancing of
interests under copyright law and to ensure educationalists and their students are
able to access the widest possible range of information in their ongoing quest for
knowledge. Universities and schools alike argue that, in the course of their
educational experience, students must be as free as possible to use educational
materials that will help with their intellectual growth (National Council of
Independent Schools Associations Submission 7.5, p. 1).
In addition to these general debates about fair dealing, a number of more specific
concerns have been raised which are of interest to the university community. These
are:
• copying for distance education students;
• re-insertion of the word ‘private’ before ‘research or study in the fair dealing
provisions in s 40;
• the quantitative guidelines for fair dealing in s 40(2);
• a broader concept of fair dealing;
• fair dealing and the digital use of works; and
• fair dealing and the statutory licences.
Each will be examined in turn.

54
A further alternative suggested is that a levy be placed upon copying equipment such as
photocopiers, personal scanners and personal computers (Copyright Agency Limited
Submission 7.4). Publishers have also expressed concerns about the impact these new
technologies will have upon the traditional publishers’ markets and the returns to copyright
owners for copying of their works.
55
Copyright Agency Limited further argues this approach would be consistent with
Australia’s international treaty obligations as set out in para 9.2 of the Berne Convention
(see Copyright Agency Limited Submission 4.6, p. 7).
56
‘Universities, and other research institutions whose primary purpose is the advancement of
knowledge for the benefit of the community, need assurance that ‘fair dealing for the
purpose of research’ is a concept applicable to the institution’s research activities.’
(Australian Vice-Chancellors’ Committee 1996a, p. 2)
49
 Copyright in Universities

Copying for distance education students

Section 40(1A) of the Copyright Act allows copying by institutions of print material
for external students within the scope of fair dealing. This important provision was
introduced to overcome the fact that external students’ were unable to copy in
institutional libraries (under the fair dealing provisions). This reflects the general
position of educational institutions that external or distance education students
should be placed on a similar basis as those attending an institution in person. Thus,
to the extent that internal students are able to engage in fair dealings with materials
in print, audio-visual, electronic and other formats, it is argued that there should be
scope for educational institutions to provide distance education students with
similar levels of non-remunerable access by copying and making those materials
available to them (including by electronic means) (National Council of Independant
Schools Association Submission 4.11, p. 7).
The Australian Vice-Chancellors’ Committee has recognised the advantages that
technology provides for the delivery of material for some time:
The availability of scanning, CD-ROM, ‘smart-card’ and micro-computer
technology has opened up significant opportunities to provide distance education
students with study material, including readings taken from journals and books,
in an easy-to-deliver and easy-to-use electronic form. As micro-computers and
other electronic equipment which will allow users to access information stored on
CD-ROM, computer disks and other devices become more widely available, it is
enviable that universities will make use of those technologies to provide distance
education students with instructional materials. Making electronic copies of
materials originally in print form for distance education purposes would seem to
be covered by existing provisions in the Copyright Act. Under the existing
provisions print copies of reference material provided to distance education
students are exempt from remuneration. (Australian Vice-Chancellors’
Committee Submission 1.1, p. 3)
CAL’s response to the AVCC submission that ‘it is most important that
electronically stored material used by distance education students is not subject to
payment’ (Australian Vice-Chancellors’ Committee Submission 4.6, p. 5) is that
‘simply because more powerful technological means now exists to provide course
materials to students in another form should not mean that copyright owners do
not receive equitable remuneration for the use of their work’ (Copyright Agency
Limited Submission 4.7, p. 10).
The Australian Vice-Chancellors’ Committee argues that suggestions of this sort
strike at the heart of fair dealing provisions. In opposition, they argue that it is vital
that the free supply of copies to distance education students not only be
maintained, but also that they be extended to include electronic copies. Universities
are of the view that making electrocopies of materials originally in print form for
distance education purposes is covered by existing provisions in the Copyright Act,
which exempt print copies of reference material provided to distance education
students from remuneration (Australian Vice-Chancellors’ Committee Submission
4.6, p. 5).
Arguing against the continuation of s 40(1A), copyright owners have suggested that
technological changes such as the introduction of online services have meant that
external students have the same access to libraries as on-campus students. The
ability to scan material opens up opportunities to provide distance education
50
 Copyright in Universities

students with study material in an easy to deliver and easy to use form. As such, the
basis for the introduction of s 40(1A) is no longer applicable (Copyright Agency
Limited Submission 4.6, p. 10). Copyright Agency Limited argues that:
for the purposes of providing students with course materials including copyright
works, digital technology makes it possible to treat all students in exactly the
same manner. External students are no longer remote from facilities or services
which are essential to their studies. The payment of equitable remuneration
should not be dependant on the physical location of the student. Indeed interactive
on-line course materials are often seen by students and educational institutions as
a valuable and preferred mode of learning. (Copyright Agency Limited
Submission 4.6, p. 11)
While there may still be a small proportion of students on remote locations without
ready access to educational resources, Copyright Agency Limited argues that there
is an increasing number of distance education students, located in cities, who
choose to study in an external mode for convenience (Copyright Agency Limited
Submission 4.6, p. 10). Copyright Agency Limited argues that copies or works
provided to external or distance education students should be required to be made
under the statutory licence and thus be paid for at the educational copying rate.
One of the problems of these arguments is that they presuppose distance students
have access to online facilities. Until this can be shown to be the case, to presume
as much raises serious equity concerns.
The Copyright Law Review Committee in its recent report recommended ‘that
ss 40(1A) and 40(1B) not be included in the proposed fair dealing provision and
they therefore be repealed’ (1999, Recommendation 6.111).57

Reinsertion of the word ‘private’ before ‘research or study’ in the fair dealing
provisions in s 40
One of the purposes that may be relied upon for a defence of fair dealing is that the
dealing is carried out for the purpose of ‘research and study’ (s 40, 103C Copyright
Act 1968 (Cwlth)). Prior to 1976, such copying was limited to ‘private research and
study.’ However, the word ‘private’ was removed in 1976 (on the recommendation
of the Copyright Law Review Committee 1976, Report on reprographic reproduction
(Franki Report)). One of the amendments suggested in the CLRC Fair Dealing
Issues Paper is the reinstatement of ‘private’ before ‘study’. This amendment is
supported by copyright owners who argue that the current provisions allow
commercial organisations to engage in extensive copying on the footing that they
are carrying out research when they should be compensating the copyright owners
for those uses.58
The Australian Vice-Chancellors’ Committee does not support the reinstatement of
the word ‘private’ before ‘study’. They suggest that it places an unworkable

57
The Committee questioned ‘the value of s 40(1A) given that it is not a deeming provision
and that the dealing must first be regarded as being a fair dealing before it can apply.’
(para 6.110).
58
Copyright owners also wish to exclude copying by libraries when they engage in
commercial research and study (see Copyright Agency Limited Submission6.3).
51
 Copyright in Universities

restriction on the research activity of universities. They argue that researchers

should be able to draw upon the information bases and resources which underpin
their research, regardless of funding sources or ultimate use. The Australian Council
of Library and Information Services also strongly opposes the re-introduction of
‘private’ before ‘study’ for similar reasons (Australian Council of Library and
Information Services Submission 7.5, p. 3).
This issue opens up important questions about the status of universities. While
universities have long been seen as non-profit organisations, the increasing pressure
being brought to bear upon them to commercialise their research and teaching has
raised doubts as to how they ought to be characterised.
The CLRC Report has recommended ‘that the word “private” not be re-inserted
before the phrase “study or research” in relation to fair dealing for the purpose of
“research or study” (ss 40 and 103)’ (Copyright Law Review Committee 1998b,
Recommendation 2.18 & para 6.117).

The quantitative guidelines for fair dealing in s 40(2)

There has been some suggestion by copyright owners that the current quantitative
guidelines found in s 40(2) are unfair to copyright owners as they take no account
of the quality of the work that is being copied (e.g. see Australian Book Publishers’
Association Submission 4.2, p. 6).
In opposition, Australian Vice-Chancellors’ Committee and Australian Council of
Library and Information Services strongly support the maintenance of the current
quantitative test for published print works. Moreover, they also argue that the
quantitative factors should be available to determine fairness of a dealing in all
possible circumstances, not just for the purpose of research and study (Australian
Council of Library and Information Services Submission 7.3). Libraries are often
asked for advice on copying limits and the quantitative test has provided invaluable
assistance in providing guidance to their readers where published print works are
concerned (Australian Council of Library and Information Services Submission 7.3,
p. 2).
Whilst acknowledging that the quantitative test offers little help in relation to digital
works, Australian Council of Library and Information Services strongly supports
the adaptation of the quantitative test to suit the electronic environment, with
indicative examples to supplement this test (Australian Council of Library and
Information Services Submission 6., p. 3).
The Copyright Law Review Committee has made a number of recommendations in
relation to the quantitative test. They begin with a recommendation that the
CLRC’s analysis of the quantitative test be taken into account by the Federal
Government in the next stage of their consideration of the Digital Agenda
legislative reforms (Copyright Law Review Committee 1999, recommendation 2.05
& para 6.66). More specifically, the Copyright Law Review Committee recommends
as follows:
Recommendation 2.06 The Committee recommends that the quantitative test,
and the concept of a ‘reasonable portion’, as it is currently called, be treated
separately from the concept of a ‘fair dealing’ since there is no requirement for
recourse to the criteria of ‘fairness’. The Committee therefore recommends further
that
52
 Copyright in Universities

• the structure of the new fair dealing provision reflect this distinction and that
the quantitative test be removed from ‘fair dealing’ and drafted as a separate
stand-alone provision on permitted free copying;
• a ‘reasonable portion’ be renamed a ‘prescribed portion’, to distinguish it
more clearly from the general principle of fair dealing. (See also Copyright
Law Review Committee 1998b, para 6.68.)
The other recommendations made with respect to the quantitative test are as
follows:
• that the provision just described expressly prohibits the serial copying of
10 per cent portions (see Copyright Law Review Committee 1998b,
Recommendation 2.07 & para 6.69);
• that the operation of the quantitative test be defined exhaustively and be
specifically limited to published literary, dramatic and musical works in printed
form (see Copyright Law Review Committee 1998b, Recommendation 2.08 &
para 6.71);59 and
• that the current limitation on the application of the quantitative test to a dealing
‘by way of copying’ be removed, thereby allowing the quantitative test to apply
to all dealings with printed published literary, dramatic or musical works, or
adaptations of such works, for the purpose of research or study (see Copyright
Law Review Committee 1998b, Recommendation 2.10 & para 6.77).60
The Copyright Law Review Committee also recommended61 that, if the
recommendation to apply the quantitative test to all dealings is not adopted, the
term ‘reproduction’ be used instead of the term ‘copying’, so as to ensure
application of the test to the widest possible range of reproductions (see Copyright
Law Review Committee 1998b, Recommendation 2.12 & para 6.86).

A broader concept of fair dealing?

It has been suggested that the fair dealing provisions should be broadened to mirror
the US provisions of fair use. 62 Section 107 of the US Copyright Act 1976 provides:

59
The Committee therefore recommends the insertion of the word ‘printed’ before the terms
‘periodical publication’ and ‘published edition’ (see the discussion of the definition of
‘prescribed portion’ in para 6.145) (Copyright Law Review Committee 1998b,
Recommendation 2.09 & para 6.72).
60
This recommendation was made with the exception of two members. Also see
recommendation 2.11 which provides that: ‘[i]n dissenting from the foregoing
recommendation one Committee member recommends the extension of the quantitative test
to all dealings except those that involve the reproduction of copyright material from hard-
copy form to digital form. The other dissenting Committee member recommends that the
quantitative test remain limited to dealings ‘by way of copying’. (See also Copyright Law
Review Committee 1998b, para 6.78).
61
With the exception of the two dissenting members.
62
For a useful discussion of the US Fair Use provisions, see Gasaway 1996.
53
 Copyright in Universities

Notwithstanding the provisions of section 106 and 106A, the fair use of a
copyright work including such use by reproduction in copies or phonorecords or by
any other means specified by that section, for purposes such as criticism, comment
news, reporting, teaching (including multiple copies for classroom use) scholarship
or research is not an infringement of copyright. In determining whether the use
made of a work in any particular case is a fair use the factors to be considered
shall include–
• the purposes and character of the use, including whether such use is of a
commercial nature or is for non-profit educational purposes;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
• the effect of the use upon the potential market for, or value of, the copyrighted
work.
The fact that a work is unpublished shall not itself bar a finding of fair use if
such finding is made upon consideration of all the above factors.
The difference in flexibility between US and Australian law arises from a subtle
difference in drafting. Section 107 of the US Copyright Act 1976 codifies the fair use
exception developed in the courts in that country. It includes a number of the
factors that are to be found in s 40(2) of the Australian Copyright Act.
Under s 107 of US Copyright law, fair use is deemed not to be an infringement
where it is for purposes such as criticism, comment, news reporting, teaching,
scholarship, or research. In Australia, by contrast, fair dealing applies only where the
purpose of the dealing is research of study, criticism or review, reporting news
professional legal advice and judicial proceedings. The key words ‘such as’ are
missing from the Australian Copyright Act. More specifically, it has been suggested
that the current requirement that, for an activity to be a fair dealing, it must fall
under one of the categories listed in s 40, ought to be removed. The reason for this
is the belief that the US provisions, which lend themselves to a more pragmatic
case-by-case approach,63 are both simpler and more flexible thus capable of
adjusting to changes in technology more readily (see Brundenall 1997a, referring to
Mason (1996) and Copyright Law Review Committee (1997) support of this
notion.)
The Australian Council of Library and Information Services supports the adoption
of a more attenuated US style approach as this will provide more flexibility that the
current provisions allow (Submission 7.3).
The Australian Copyright Council is strongly opposed to the adoption of a ‘more
open’ US style approach to fair dealing. It submits that the identification of specific
purposes is required under Australia’s international obligations (e.g. Article 13 of
TRIPS and Article 9(2) of Berne Convention; see Australian Copyright Council
Submission 7.1).
The Copyright Law Review Committee has recommended to the Government that
the fair dealing provisions be ‘expanded to an open-ended model that specially refer

63
This is supported by the Australian Copyright Council (see Submission 7.1).
54
 Copyright in Universities

to the current exclusive set of purposes . . . but is not confined to those purposes’
(see Copyright Law Review Committee 1998b, Recommendation 2.03 & also
para 6.35).
Universities should strongly support the recommended open-ended model of fair
dealing.

Fair dealing and the digital use of works64

The emergence of digital technology has copyright owners and users in turmoil.65
While digitisation has accentuated problems in many areas of copyright law,
perhaps the most controversial issue relates to the future of fair dealing.
One of the main concerns of copyright owners is that, in the digital environment,
fair dealing will undermine the markets of works distributed online. Publishers,
particularly those of educational material, believe that ‘in a digital environment
students will, with the aid of the fair dealing provisions, be able to access, copy and
transmit significant portions of their works without fear of infringement, possibly
causing irreparable damage to their market’ (Brundenall 1997a, p. 4). In support of
this, copyright owners state that the exceptions in the Berne Convention
(Article 9(2)) and the TRIPS Agreement (Article 13) must not conflict with the
normal exploitation of the work and must not unreasonably prejudice the legitimate
interests of rights holders. On this basis it is said that fair dealing ought not to exist
in the digital age.
In a sense it is argued that the fair dealing defences are culturally and
technologically specific. Fair dealing was (and presumably remains) necessary when
the technology meant that owners could effectively prevent any access to material
no matter how worthwhile the purpose of the user. In situations where this is not
the case, so the argument goes, fair dealing is no longer needed.
It could be argued that the policy served by the fair dealing defence remains valid
no matter what technology is used. As the onus of showing that the dealing is
within the defence is upon the user (who will otherwise be found to have infringed)
it can be argued that the risk to owners is not unduly great given the broad social
value of the purpose to be achieved (Griffith 1995, p. 14).
The Australian Vice-Chancellors’ Committee argues that ‘to restrict the fair dealing
provisions of the Act to the non-digital environment would be an unwarranted
impediment to study and research activity, both vital to the well-being of the
community’ (Australian Vice-Chancellors’ Committee Submission 3.5, p. 1).
In thinking about fair dealing, particular attention needs to be given to the question
of whether or not when a student views a stored copy on screen at a terminal, say at
a library, this is an act of fair dealing for research or study. If it was an act of fair

64
For a detailed discussion of Fair Dealing in the digital environment, see Brundenall
1997a, p. 1.
65
However as has been suggested, ‘the contours of this dispute do not look very different
from the shape of very similar disputes that arose in the 1980’s, when the gods invented
personal computers, or in the 1970’s, when they invented videocassette recorders, or in the
1960s, when they invented cable television, or the 1920s, when they invented commercial
broadcasting and talkies’ (Litman 1995, p. 1).
55
 Copyright in Universities

dealing, such viewing (and perhaps downloading) would not be an infringement by

the student. It is not an infringement that has been authorised by the institution and
as such is not an act which is remunerable (Griffith 1995, p. 14).
The Copyright Law Review Committee has recommended66 that ‘the proposed fair
dealing model apply to all exclusive rights subsisting in copyright, as s 40(1) of the
Act does now. The majority of the Committee therefore recommends that the new
fair dealing model apply to the Government’s proposed broadly based, technology-
neutral right of communication to the public, if the new right is enacted’ (Copyright
Law Review Committee 1998b, Recommendation 2.13; see also para 6.87).

Fair dealing and the statutory licences

The relationship between the fair dealing defence and the statutory licence under
which universities copy works has been the cause of tensions in the past. The
particular issue in dispute is whether persons who have the benefit of a statutory
licence are nevertheless entitled to rely on the fair dealing provisions.
Some guidance in this matter can be gained from the decision in CAL v Haines
([1982] 1 NSWLR 182). This case did not rule out reliance by teachers and schools
on s 40 fair dealing for copying within the educational context. McLelland J granted
relief to restrain the threatened authorisation of infringement on the basis that a
memo, stating that virtually the same copying as could be done under s 53B (later
replaced by the Part VB educational copying provisions), could also be done under
s 40, without the need for the payment of equitable remuneration to copyright
owners.67

4.3.3.4The CLRC Report

The Copyright Law Review Committee released Part 1 of its report on the
Simplification of the Copyright Act 1968 in September 1998. There were a number of
recommendations made with respect to the fair dealing provisions that are relevant
to the issues discussed in this report. The Committee unanimously recommended
that the proposed fair dealing provision and the details of the modified quantitative
test remain in the Act (see Copyright Law Review Committee 1998b,
Recommendation 2.02 & also para 6.31). A number of more detailed
recommendations were also made, for example:
2.01 The Committee recommends that the fair dealing provisions of the
Copyright Act 1968 be simplified by
• consolidating the current fair dealing provisions (ss 40, 41, 42, 43(2),
103A, 103B and 103C) into a single section;

66
With the exception of one member. The dissenting member recommended that the
proposed fair dealing provision apply to all dealings except electronic reproduction,
transmission and making available on the Internet and other on-line services of copyright
material (Copyright Law Review Committee 1998b, Recommendation 2.14 & para 6.88).
67
It is interesting to note that in Haines v Copyright Agency (1982) 64 FLR 184, the Full
Federal Court emphasised the difference between s 40 and s 53B and denied that s 40 was
‘an attractive alternative’ to s 53B (see Australian Copyright Council 1996, p. 26).
56
 Copyright in Universities

• absorbing the provisions relating to acts done for the purpose of professional
advice in relation to subject matter other than works (ss 104(b) and 104(c))
within fair dealing;
• removing the fair dealing provisions that specifically apply to external
students (ss 40(1A) and 40(1B));
• removing the provisions that require sufficient acknowledgment in relation to
fair dealings for the purpose of reporting news (ss 42(1)(a) and 103B(1)(a));
• adopting a modified quantitative test (s 40(3)). [para 6.29]
2.03 The Committee recommends the expansion of fair dealing to an open-
ended model that specifically refers to the current exclusive set of purposes—such
as research or study (ss 40 and 103C), criticism or review (ss 41 and 103A),
reporting news (ss 42 and 103B) and professional advice (s. 43(2))—but is not
confined to those purposes. [para 6.35]
2.04 The Committee recommends that the non-exclusive set of factors that
are currently considered in relation to ‘a dealing by way of copying’ with a work
for the purpose of research or study (s. 40(2)) be applied generally to all fair
dealings. [para 6.44]
2.19 The Committee recommends that the Act be amended so as to include
reference to cinematograph films in the definition of ‘sufficient acknowledgment’
to achieve compliance with Australia’s international obligations under
arts. 10(3) and 14bis(1) of the Berne Convention. [para 6.120]
2.20 The Committee recommends that a specific provision be maintained in
the Act (similar to the current ss. 41 and 103A) to comply with art. 10(3) of
the Berne Convention or, alternatively, that the moral rights provisions be
appropriately amended in relation to dealings conducted for the purpose of
criticism or review. [para 6.122]
2.21 The Committee recommends that ss. 42(1)(a) and 103B(1)(a) be
removed from the Act and that reliance be placed on the new moral rights
provisions to effect compliance with art. 6bis(1) of the Berne Convention. [para
6.126]
2.22 The Committee recommends that s. 42(2) of the Act be expanded to
include literary, dramatic and artistic works and cinematograph films. [para
6.132].
Universities must consider the impact of these recommendations upon their current
copyright practices and support them where appropriate.

4.3.4 Licensing provisions

4.3.4.1Introduction
One of the most common ways in which copyright works are legitimately used
within the university is by way of licensing arrangements. Whereas an assignment is
basically a transfer of ownership, a licence is simply permission to do what would

57
 Copyright in Universities

otherwise amount to an infringement. There are two forms of licence under which
universities copy materials.

Compulsory licences68
Compulsory licence schemes transform copyright from a right of control into a
right of fair payment. They ensure that particular users (e.g. educational users) do
not need the permission of copyright owners to make limited and reasonable use of
their works. Those users, however, do need to pay owners an equitable amount for
that use. Such licensing schemes simplify the administration of copyright payments
by declaring a particular collecting society to be the body to whom copying records
and payments must be sent (see National Council of Independant Schools’
Association Submission 4.11, p. 130).

Voluntary licences
A voluntary licence is an agreement entered into between the copyright owner and
the user of a work. Part of the difficulty in operating under a voluntary licence is
locating the owner of the copyright work to gain permission. To avoid the
problems associated with this, copyright owners often engage collecting societies
(e.g. Copyright Agency Limited and Screenrights) to collect royalties on their
behalf.
Consistent with the notion of freedom of contract, copyright owners may refuse to
enter into a voluntary licence scheme or may set the terms and rates for use at a rate
on their own terms. Such licence agreements are, of course, subject to the normal
rules which govern contracts.
While there are many forms of licensing arrangements under the Copyright Act (see
Lahore [24,011]–[28,001]; or McKeough 1997, p. 115), this report will focus on
those of most relevance to the university sector at present. These are:
• educational copying of broadcasts (Part VA Copyright Act 1968 (Cwlth)); and
• educational copying (Part VB Copyright Act 1968 (Cwlth)).
Before examining the Part VA and Part VB provisions, it is useful to note the
recent recommendations of the Copyright Law Review Committee with respect to
educational copying. The Copyright Law Review Committee has recommended
that the Copyright Act be recast to:
• group together all provisions relating to educational institutions;
• reduce the duplication in Parts VA and VB by combining the provisions
(referred to in Table 2 with appropriate modifications; see Copyright Law
Review Committee 1998b, para 9.09) and including them in a separate part of
division of the Act; and
• transfer material relating to collecting societies to regulations (Copyright Law
Review Committee 1998b, Recommendation 2.93 & para 9.09).
Universities should support the recommendations on the simplification of the
educational copying provisions.

68
Provided under the Copyright Act 1968 (Cwlth).
58
 Copyright in Universities

4.3.4.2Educational copying of broadcasts (Part VA)

Introduction
Part VA of the Copyright Act 1968 (Cwlth) introduced a compulsory licensing
scheme which enables educational institutions, on satisfying certain conditions, to
copy broadcasts, sound recordings or films included in the broadcast. The regime
only relates to copies made for educational purposes or for the purpose of assisting
intellectually disabled persons. Part VA specifies that payment must be made to a
collecting society (formerly the Audio-Visual Collecting Society, now Screenrights)
and the amount will be calculated on the basis of either the number of copies made
(records system) or the number of students in the institution (sampling system).
A pivotal feature of Part VA copying is the remuneration notice. A remuneration
notice must be given by the institution to the declared collecting society.
Screenrights administers the scheme in Part VA, creating a statutory licence for the
copying of sound and television broadcasts by educational institutions (ss 135P and
135ZZB of the Copyright Act 1968 (Cwlth)). The Copyright Act provides that the
university keeps records of the copying made or that samples be allowed to be
taken (s 135E). The remuneration notice (defined in s 135G(1) Copyright Act 1968
(Cwlth)) provides for the payment of equitable remuneration for the copies of
broadcasts made by or on behalf of an institution in accordance with either a
records system or a sampling system. It is only where a remuneration notice is in
force that an institution can make a copy of a broadcast or in the material included
in it (s 135F(1)(a) Copyright Act 1968 (Cwlth)).
Money collected by Screenrights for copying under the statutory licence is
distributed to ‘relevant copyright owners’ who are the owners of copyright in
works, sound recordings or films but not broadcasters who own copyright in the
broadcasts themselves (definition of ‘relevant copyright owner’ in s 135A Copyright
Act 1968 (Cwlth)). Screenrights collects payments under the statutory licence for all
copyright owners whether or not they are members of Screenrights. Where the
owner is not a member, the funds are held in trust pending identification and
admission to membership.69 Since 1990, Screenrights has collected more than $50
million for distribution to copyright owners (Screenrights, Collecting Income for
You, undated publication). (See also Osmond 1997, p. 11.)
The agreements that Screenrights has with educational institutions are by their
nature blanket licences (to the extent that they allow an individual educational
institution to copy any television or radio program for educational purposes). For
Screenrights’ purposes, a blanket licence is one with an entire education sector,

69
‘Section 135P(3) of the Copyright Act requires the rules of Screenrights to provide for the
holding on trust of amounts for relevant copyright owners who are not its members. Thus
Article 16 of the Articles of Association of Screenrights provide that the Society shall manage
a trust fund where: a member cannot be located; the relevant copyright owner is not a
member; there is a dispute as to the person entitled to be paid any money; or the money
allocated to a member is less that $10.00. If a period of four years elapses from the date of
the allocation of these funds to the trust account, the money must be transferred from the
trust fund and treated in like manner to collections received in that year’ (Simpson 1995,
p. 184).
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 Copyright in Universities

whereas an individual Screenrights’ licence is one with a stand-alone educational

institution (Simpson 1995, p. 113).

Current arrangements between universities and Screenrights

The present agreement between Australian Vice-Chancellors’ Committee and
Screenrights, which began in 1994, stipulates that the rate of remuneration for each
year is determined in accordance with a formula by which the total copying for the
sampled institutions (in minutes) is divided by the census enrolment (EFTSU) of
the sampled institutions. This figure is then multiplied by the current rates per
minute of copying.70 The resulting figure is the ‘rate per EFTSU’71 which each
institution pays. The rate is moderated by a rolling three-year average which was to
have come into force from 1996.
A number of different rates are set for different uses. For example, in 1997 the
rates were as follows:

70
In contrast to this arrangement, schools pay a flat fee rate per student for audio-visual
copying, a rate which does not vary from year to year. Sampling continues to take place but
the results of the sample are used only for the purpose of distributing royalties to copyright
owners. This rate was set at $1.00 per student for the financial year commencing 1 July
1993, to be increased in each subsequent year in line with CPI movements. In 1995 after
unsuccessful attempts to increase the rates applying to schools, Screenrights applied to the
Copyright Tribunal for a determination of a new rate. The determination in the School’s
case was handed down on 1 May 1997 and the rate for the schools was set at $2.60 per
EFTSU in 1997–98 with the increase from $1.00 phased in retrospectively from 1994.
In the course of the proceedings, counsel for Screenrights submitted that the rates being
paid by the universities and TAFE sector provided guidelines or benchmarks which were
relevant in the determination of the rates being sought for the schools. ‘The AV-CC has
relied heavily on the university rates as a reliable guide to what the outcome of this case
should be. But it recognised the vast disparity between the university rates and the school
rates. The application of the university rates would have yielded figures of well over $20 per
student, an increase of 20 to 25 times the rate of $1 or so which applied in relation to the
schools up to the end of 1994’ (per Sheppard in Audio-Visual Collecting Society Ltd v New
South Wales Department of School Education and Others (1997) 37 IPR 495, 510-511).
There is currently an application before the Copyright Tribunal to review the university rate
of copying under Part VA.
71
The total EFTSU for each university is that reported at the March census date of the
previous year.
60
 Copyright in Universities

For television: Category A Special By notification

Category B General: $3.03 per minute
documentaries
educational
programs and
feature films
Category C Ephemeral: 91c per minute
news, sports, serials,
current affairs and
light entertainment
For radio: $3.03 per fifteen
minutes or part
thereof

Concerns with the operation of Part VA

A number of issues concerning the operation of Part VA have been raised. A useful
way of approaching these issues is through an examination of the issues raised in
the CLRC issues paper on educational copying.
One of the criticisms made about Part VA is that it is overly complex and rigid. It
has been asked whether the statutory licence schemes ought to be replaced by
voluntary arrangements with representatives of copyright owners, such as
Screenrights? If a voluntary licence approach were adopted, it would be necessary
to extend the powers of the Copyright Tribunal to deal with matters relating to the
terms of a licence. However, in their submissions to the Copyright Law Review
Committee both Screenrights and the Australian Vice-Chancellors’ Committee
support the statutory licensing schemes.
It has also been suggested that consideration should be given to an extension of
Part VA to enable audio-visual material, other than material which has been
broadcast on radio or television, to be copied for the use of external students
(Australian Vice-Chancellors’ Committee Submission 5.1). Both users and owners
have indicated that the statutory licences provided by Part VA should be extended
to cover all forms of transmissions, thereby including narrowcast, cable and
satellite. It has also been suggested that material contained in foreign broadcasts
should also be covered by the licence (Copyright Law Review Committee 1997a,
p. 5).72
Doubts have also been raised about the rates currently paid by universities under
the Part VA statutory licence. It is interesting to note that in the course of his
judgment in Audio-Visual Collecting Society Ltd v New South Wales Department of School
Education and Others, Sheppard P said:

72
Another concern raised about the operation of Part VA was whether audio-visual material
should be able to be supplied to external students in the same way as print material can be
supplied under s 40(1A) Copyright Act 1968 (Cwlth).
61
 Copyright in Universities

There is no doubt that there is a substantial disparity between those [university]

rates and those agreed upon in respect of the schools somewhat earlier. The
disparity is so great that I could not help remarking during the hearing that I
thought it was quite extraordinary. In the course of their submissions, counsel
for the respondents advances reasons why there was a difference between the
situation of schools and universities which, so counsel submitted, tended to
explain the difference. I have taken these submissions into account but I do not
find them convincing. (Audio-Visual Collecting Society Ltd v New South
Wales Department of School Education and Others (1997) 37 IPR pp. 495,
510–511)
The Australian Vice-Chancellors’ Committee is currently negotiating with
Screenrights for a new agreement for 1998. The new agreement will include clauses
covering the basis for calculation of remuneration for audio-visual copying.
There is currently an application before the Copyright Tribunal to review the rate
paid by universities for copying under Part VA. It may be some time before a
determination in this matter is made; however, this issue should be monitored
closely as the outcome will obviously have an impact on the cost of copying of
copyright works by universities.
The CLRC Report made very few recommendations concerning Part VA of the
Copyright Act. They made no recommendation for any exceptions from the
operation of the licence schemes in Part VA of the Copyright Act. They also
recommended that Division 4 (dealing with interim copying ) of Part VA of the
Copyright Act be repealed (Copyright Law Review Committee 1998b, para 9.35).

4.3.4.3Educational copying (under Part VB)73

Introduction
Yet another way in which universities are able to make legitimate use of copyright
works is through the statutory licence provided for in Part VB of the Copyright Act.
Part VB allows educational institution to make multiple copies of certain works for
the teaching purposes upon payment of a royalty to the declared collecting society.
There are a number of important and contentious issues that surround the
educational copying provisions; however, the issue of the increasing cost of
copyright to the university has been of great concern to universities. In particular,
universities are very concerned about the ever-increasing licence fees paid to
collecting societies for use of copyright works. For example, in 1995 the university
sector paid $4.4 million to copyright owners for Part VB copying, which increased
to approximately $6.6 million in 1997 (Department of Employment, Education and
Training 1997, Table 35).

History of the current educational copying provisions

The current arrangement under Part VB is complicated and confused. To
understand the current licensing provisions, it is necessary to examine the former

73
Sections 135ZH–135ZM of the Copyright Act 1968 (Cwlth).
62
 Copyright in Universities

educational copying scheme under Division 5A of Part III of the Copyright Act 1980
(Cwlth), which preceded the current arrangements set out in Part VB of the
Copyright Act.

4.3.4.4Division 5A of Part III of the Copyright Act 1980 (Cwlth)

In 1980, the Copyright Act was amended by the insertion of Division 5A,74 which
dealt with copyright of works in educational institutions, and by the insertion of
Division 5B, which concerned copying of works in institutions assisting
intellectually disabled readers. One of the most important elements of Division 5A
was s 53A, which provided for multiple copying of insubstantial portions of works,
and s 53B, which provided for a system of statutory licensing for photocopying in
educational institutions. So long as educational institutions made and kept detailed
records of their copying s 53B allowed them to photocopy material for teaching
purposes at will. The records made were then to be used as a basis for calculating
‘equitable remuneration’, which was to be paid to the copyright owners whose
works had been copied within universities. If no agreement could be reached as to
the amount of remuneration payable, the amount was to be determined by the
Copyright Tribunal.
In 1983, Copyright Agency Limited brought an application to the Copyright
Tribunal to determine the rate of equitable remuneration payable for copying of
works under s 53B. In 1985, the Tribunal determined the rate should be 2 cents per
page (Copyright Agency Ltd v Department of Education of New South Wales and Others
(1985) 59 ALR 172). The Copyright Agency Limited used this as an across-the-
board benchmark for determining fees under their educational copying licences.
Shortly after the Tribunal’s decision, negotiations took place between Copyright
Agency Limited and representatives of educational institutions to enter into new
voluntary licences. These culminated in an agreement in December 1987. One of
the motives for this was that the record keeping requirements of s 53B were
particularly onerous and expensive for both Copyright Agency Limited and the
universities.
Each university that was a member of the Australian Vice-Chancellors’ Committee
then entered into separate agreements with Copyright Agency Limited. Pursuant to
these agreements, licences were given to individual universities in 1988. The
agreements provided for an annual lump sum payment per student which was to be
adjusted each year according to the results of sampling. The 1987 agreements were
for one year with options to renew. In 1989, the agreements were renegotiated.
There was a succession of agreements dealing with that voluntary licensing
arrangement culminating in the 1989 Head Agreement which was later varied by a
1991 Deed of Variation.

74
As a result of the Franki Committee’s recommendations, s 14 Copyright Amendment Act
1980 (Cwlth) inserted the new Div 5A of Pt III.
63
 Copyright in Universities

4.3.4.5Part VB of the Copyright Act 1968 (Cwlth)

In 1989, Div 5A of Part III was repealed (by the Copyright Amendment Act 1989
(Cwlth)) and replaced by Part VB entitled ‘Copying of Works etc by Educational
and Other Institutions’ (ss 135ZH–135ZM Copyright Act 1968 (Cwlth)). The aim of
Part VB was to strike a balance between the public interest in the provision of
multiple copies of works for use in educational institutions and the public interest
in the provision of reasonable and practical opportunities for recompense by
copyright owners for use of their works (Copyright Law Review Committee 1997a,
p. 1).
Part VB created a regime whereby educational institutions, upon the giving of a
‘remuneration notice’, could acquire a statutory licence for the multiple copying of
certain kinds of works and other subject matter. Part VB has overcome many of the
problems that were experienced by the universities and collecting societies under
earlier regimes.75
One of the notable features of the Part VB scheme is that, unlike the old Division
5A which made rigorous reporting requirements mandatory, the new Part VB
enables universities to choose between a payment system based upon full record
keeping and the per capita (EFTSU) basis.

4.3.4.6Features of the Part VB statutory licence

There are a number of notable features of the Part VB statutory licence.

Contracting out of the statutory licences

It is important to note that Part VB does not exclude the possibility of voluntary
agreements. Section 135ZZF provides that ‘nothing in this part affects the right of
the owner of copyright in a work to make, or cause to be made, copies of the whole
or a part of the work without infringement of that copyright’.
Given that the Copyright Act specifically provides that compulsory licensing schemes
can be amended by voluntary schemes (e.g. see s 135ZZF Copyright Act 1968
(Cwlth)), it is not surprising that universities currently operate under what is, in
effect, a voluntary licence which invokes the terms of the statutory licence under
Part VB of the Copyright Act.76 The funds collected under voluntary licences are
outside the regime of Part VB of the Act. The voluntary licences between
Copyright Agency Limited and users do not contain a licence to copy all works.
Copyright Agency Limited licenses users to copy works by CAL members only
(Simpson 1995, Licensee Indemnity).

75
Further streamlining improvements were made to the educational copying scheme under
Part VB in the recent Copyright Amendment Act (No. 1) 1998 (Cwlth).
76
The Copyright Agency Limited has argued that while the universities have operated under
voluntary licences the Part VB scheme has not operated. However the licences as they
currently operate are, in their nature, statutory licences.
64
 Copyright in Universities

How is the Part VB statutory licence invoked?

To invoke the statutory licence, the copying institution must give Copyright Agency
Limited a remuneration notice. The existence of a valid remuneration notice is one
of the conditions of exemption from infringement.77 It is only where a
remuneration notice is in force that an institution can make a copy under the
statutory licence without infringing any copyright in the materials copied. The
educational institution must undertake to pay equitable remuneration through a
copyright collecting society for licensed copies.78
Provisions which are substantially of the same effect are also made in respect of
multiple copying of works published in anthologies (s 135ZK of the Copyright Act
1968 (Cwlth)) and the multiple copying of literary, dramatic and musical works or
artistic works other than articles in periodical publications (s 135ZL of the Copyright
Act 1968 (Cwlth)).79
Section 135ZU provides for the issuing of the remuneration notice.80 In this notice
the institution undertakes to pay equitable remuneration to the collecting society for
licensed copies made by it in accordance with either a records system (s 135ZV
Copyright Act 1968 (Cwlth)) or a sampling system (s 135ZW Copyright Act 1968
(Cwlth)). A records notice requires the institution to keep records of copies made

77
As stipulated by s 135ZJ Copyright Act 1968 (Cwlth). This section provides: (1) Subject to
this section, the copyright in an article contained in a periodical publication is not infringed
by the making of one or more copies of the whole or a part of that article, by or on behalf
of, a body administering an educational institution if: (a) a remuneration notice, given by or
on behalf or the body to the relevant collecting society, is in force; (b) the copy is made
solely for the educational purposes of the institution or of another educational institution;
and (c) the body complies with subsection 135ZX(1) or (3) as the case requires, in relation
to the copy. (2) This section does not apply in relation to copies of, or of parts of, 2 or more
articles contained in the same periodical unless the articles relate to the same subject
matter.
78
‘Licensed copies are those relevantly those made under s 135ZJ Copyright Act to s 135
ZL. Copyright Act. Further provision is made for administering bodies to give two kinds of
‘remuneration notices’: records notices’ (s 135ZV) and sampling notices (s 135ZW). When
the body has given either a records notice or a sampling notice, the amount of equitable
remuneration payable to the relevant collecting society by the administering body for
licensed copies is as determined by agreement between the collecting society and the
administering body or, failing agreement, by the Copyright Tribunal (s 135ZW(1) Copyright
Act 1968 (Cwlth)).
79
It is also useful to note that s 135ZG deals with multiple copying of insubstantial portions
of a work and s 135ZH with copyright in a published edition of a work.
80
Section 135ZU Copyright Act 1968 (Cwlth) provides: (1) An administering body may, by
notice in writing given to the relevant collecting society, undertake to pay equitable
remuneration to the society for licensed copies made by it, or on its behalf, being copies
made while the notice is in force. (2) A remuneration notice shall specify whether the
amount of equitable remuneration is to be assessed on the basis of a records system or a
sampling system. (3) A remuneration notice comes into force on the day on which it is given
to the collecting society, or on such later day as is specified in the notice and remains in
force until it is revoked.
65
 Copyright in Universities

by it. A sampling notice enables the institutions and the relevant collecting society
to determine by agreement the equitable remuneration payable by the institution on
the basis of an annual amount per student of the institution concerned.81

Who can rely upon the Part VB statutory licence?

Copies can only be made under the statutory licence for the ‘educational purposes’
of an ‘educational institution or another educational institution’ (ss 135ZJ(1)(b),
135ZK(b) & 135ZL(1) Copyright Act 1968 (Cwlth)).
A copy is made for ‘educational purposes’ if:
(a) it is made or retained for use, or is used, in connection with a particular
course of instruction provided by the institution; or (b) it is made or retained for
inclusion or is included, in the library collection of that institution.
(Section 10(1A) Copyright Act 1968 (Cwlth))
The way in which ‘educational institution’ is defined was recently amended by the
Copyright Amendment Act (No. 1) 1998. It was previously defined (s 10 of the Copyright
Act 1968 (Cwlth)) to include ‘schools or similar institutions, university, college of
advanced education or a technical and further education institution’. Certain
institutions, such as schools and universities, automatically qualified as educational
institutions. Other institutions which fell outside the definition were able to ‘declare
themselves’ under s 10(4) of the Copyright Act.82 The consequence of this was that
these institutions were treated in effect as institutions that fell within the definition.
It is important to note that the definition in s 10 did ‘not include an institution that
is conducted for the profit, direct or indirect, of an individual or individuals’.
The process by which institutions which fell outside the definition were able to
have themselves declared was amended by the Copyright Amendment Act (No. 1) 1998
(Schedule 10 Copyright Amendment Act (No. 1) 1998 (Cwlth)). This amendment has
resulted in a widening of the scope for ‘self-declaration’ by institutions. The
amendments also widen the range of institutions which can use the statutory
licences, by removing the requirement of an institution being ‘not for profit’.83

What is the scope of the licence?

One of the notable features of Part VB was that it enabled universities to choose
between payment of the basis of a full record-keeping system and payment on a per

81
Subsection 135ZW(3) Copyright Act 1968 (Cwlth) provides that the number of copies on
which the total amount of remuneration is to be calculated ‘shall be assessed by use of a
sampling system determined by agreement between the administering body and the relevant
collecting society or, failing such agreement, by the Copyright Tribunal on application made
by either of them’.
82
The Attorney-General was able to declare other institutions meeting the requirements in
para (g), (h) and (j) of the definition to be educational institutions in accordance with
s 10A(1)(b) of the Copyright Act.
83
Schedule 10 of the Copyright Amendment Act (No. 1) 1998 also provides that pre-schools
and kindergartens are educational institutions. See also Attorney-General’s Department
1998.
66
 Copyright in Universities

capita basis. Given that the Part VB statutory scheme largely replicated the existing
voluntary scheme between Copyright Agency Limited and the universities, it is
unsurprising that the voluntary arrangements previously entered into between the
Australian Vice-Chancellors’ Committee and Copyright Agency Limited and the
universities were continued.
The Copyright Act provides for three licences for educational copying under Part
VB. These are:
• the multiple copying of periodical articles by educational institutions (s 135ZJ
Copyright Act 1968 (Cwlth));
• the multiple copying of works published in anthologies (s 135ZK Copyright Act
1968 (Cwlth)); and
• the multiple copying of works by educational institutions (s 135ZL Copyright Act
1968 (Cwlth)).

What can be copied under the licence?

It is a feature of all the voluntary agreements between Copyright Agency Limited
and universities that the only licence they confer is over works that are subject to
the statutory licence. The licence conferred by the Head agreement was either
expressed in terms of the statutory right, or framed in the same terms as in the
statute—i.e. the right to reproduce something that is a ‘literary work’ under the Act.
There are limitations on the amount that may be copied under the Part VB: copies
cannot be made of two or more articles in the same periodical publication unless
they relate to the same subject matter (s 135ZJ(2) Copyright Act 1968 (Cwlth)).
If a work is separately published, a ‘reasonable portion’ of the work may be copied.
More than a ‘reasonable portion’ of the work can only be copied if new copies of
the work cannot be obtained within a reasonable time at an ordinary commercial
price (s 135LZ(2) Copyright Act 1968 (Cwlth)). In the case of separately published
works in editions of more than ten pages, ‘reasonable portion’ means ten per cent
of the pages in the edition, or one chapter, whichever is the greater (defined in
s 10(2) of the Copyright Act 1968 (Cwlth)).
Until its recent amendment, s 135ZM of the Copyright Act 1968 (Cwlth) provided
that any artistic works which accompanied the article or work for the purpose of
explaining or illustrating was able to be copied without payment to the copyright
owners (s 135ZM Copyright Act 1968 (Cwlth)). This section, however, was recently
amended84 to provide that the payment made to the copyright owner for the copy
of the literary work is to be shared with the visual artists. Thus copyright payments
by educational institutions will not increase as a result of the new arrangements (see
Attorney-General’s Department 1998).

84
The Senate Legal and Constitutional Legislation Committee noted persuasive evidence
from witnesses that s 135ZM of the Copyright Act was anomalous, inequitable and
unworkable and therefore recommended that the Attorney-General repeal s 135ZM by an
amendment in the Copyright Amendment Bill 1997 (see Senate Legal and Constitutional
Legislation Committee 1997, Chapter 6, Matters not Covered in the Bill, pp. 75–76).
67
 Copyright in Universities

How is payment under the Part VB licence calculated?

The voluntary agreements entered into between Copyright Agency Limited and the
universities abandoned the idea underlying Division 5A of Pt III of the Copyright
Act, namely that the copying institution should record each instance of copying and
that this record should be used to calculate the copyright owners’ remuneration for
that copying. Instead, universities were to take part in a sampling process, whereby
works copied in the sampled institutions were to be taken as being indicative of the
works copied in the university sector. Accordingly, copying would be paid on the
basis of a rate per EFTSU, which was calculated according to the type of copying
that was done.
The voluntary licence provides for a single annual fee payment from each university
and an indemnity for all copying by the universities within the statutory copying
limits. The licence also provides that records of copying only need to be kept when
the university is participating in a statistical sample of copying85 (it is estimated this
will take place once in every five years).86
The voluntary agreements provided for samples to be collected by a market survey
organisation, AGB McNair (now ACNeilsen). Any particular institution would be
required to keep records for only a small proportion of the time. During the sample
period, the institution would be required to record the name of the publication, the
item copied and the name of its author. This information was then used to calculate
the extent of copying of each item per EFTSU in that university. An estimate was
then made of the total copying of that item (based on EFTSU numbers) within all
universities (of that type) over the sample period. Generally, the final calculation
was made by multiplying the EFTSU number by the rate set by the Copyright
Tribunal (Copyright Agency Ltd v Department of Education of NSW (1985) 4 IPR 5) (i.e.
2 cents per page which is adjusted by the Consumer Price Index (CPI) increase),
with some adjustment for inflation and a small discount in recognition of the
AVCC’s part in reaching agreement with each of the universities and Copyright
Agency Limited.
It is useful to note that Clauses 11.2 and 11.4 of the 1989 University Agreement
provide for the remuneration payable to Copyright Agency Limited in 1997 to be
calculated using the following formula: fee per student (EFTSU) = average copy
pages x page rate. The 1997 page rate is $0.31;87 accordingly, the 1997 remuneration
payable by universities is 451.333 x $0.31 = $14.26506 per EFTSU.

85
The statistical sample has two purposes: (i) to estimate the volume of copyright material
copied per student per year (this is used as the basis for calculating the annual fee per
student); and (ii) to use the records of copying kept during the sample to distribute the fees
paid by the institutions to the authors and publishers whose works have been copied.
86
It was decided that three universities and three pre-1988 colleges of advanced education
would take part in the sample on a rotating basis. It was agreed that complete records of all
copying, audited by meter readings would continued to be made.
87
The increase can be attributable to the following factors: (i) an increase in the CPI
between September 1995 and September 1996 of approx 2.5 per cent; (ii) an increase in
the rolling three-year average because of the high levels of copying in 1996; and (iii) the
phasing in of the additional CPI adjustment back to March 1985 from two-fifths in payment
year 1996 to three-fifths in 1997 (Australian Vice-Chancellors’ Committee).
68
 Copyright in Universities

4.3.4.7Current practices
To gain an understanding of the current licensing practices between the universities
and Copyright Agency Limited, it is useful to review the recent history of the
arrangements which reveals their detailed and complex nature.
The 1989 Head Agreement (as varied) between Copyright Agency Limited and the
Australian Vice-Chancellors’ Committee was to expire on 31 December 1994. The
1989 Head Agreement, the Deed of Variation and the remuneration notices given
in accordance with it did not purport to exclude any type of copying and made no
reference to copying by electronic, magnetic or digital means. It was not until 1993
and 1994, when the parties were negotiating an agreement to replace the 1989 Head
Agreement, that the question arose as to whether or not electronic copying was
covered by the licence agreements.
Copyright Agency Limited argued that electronic copying was outside the scope of
the existing voluntary licence. In contrast, the Australian Vice-Chancellors’
Committee took the position that, whatever the terms of the voluntary licence they
had with Copyright Agency Limited, electronic copying (provided the various
restrictions in Part VB were met) was within the Part VB statutory licence.
Agreement was not reached on this matter before the new agreement was
concluded at the end of 1994.
In November and December 1994, Copyright Agency Limited proposed to the
Australian Vice-Chancellors’ Committee that the universities give remuneration
notices to cover paper copying (over which there was no dispute) and that the issue
of whether or not electronic copying was covered by the voluntary licence was
deferred for consideration. Copyright Agency Limited later proposed that it would
be simpler if all paper and electronic copying was done under the statutory licence.
On 8 November 1995, prior to the finalisation of the 1995 Head Agreement (but
after the statutory licence had been put in place by remuneration notices), the
Australian Vice-Chancellors’ Committee sent to Copyright Agency Limited two
limited ‘record keeping’ remuneration notices to cover copying in ‘closed reserve’
and ‘subsequent printing’. They indicated that they were seeking a statutory licence
under Part VB for each type of copying indicated in the remuneration notices. The
notices were sent one year after the original notices under the voluntary licence
agreements, which had excluded all forms of electronic copying.
The 1995 Head Agreement was executed by Copyright Agency Limited and
Australian Vice-Chancellors’ Committee on 11 December 1995 to take effect from
1 January 1996. Unlike its predecessor, this new agreement is not a voluntary licence,
but deals with the sampling and remuneration aspects of the statutory licence. Each
of the universities then executed a Collection Scheme Agreement with Copyright
Agency Limited, dealing with methods of sampling for copying occurring in the
universities and methods of payment of equitable remuneration.88

88
Universities included in the sample for 1996 were The University of New South Wales,
The University of Adelaide, The University of Western Australia, Bond University, Monash
University and Australian Catholic University. The report provides data on copying for both
students (EFTSU) and staff (FTE). The estimate of licensed copying per EFTSU in 1996 was
507 pages. This is a considerable increase over the 1995 estimate of 417 pages. When
69
 Copyright in Universities

In 1996, during the course of an application to the Copyright Tribunal to determine

amounts of equitable remuneration and methods of sampling of copying under Part
VB, a separate question was raised by Copyright Agency Limited in relation to the
limited remuneration notices issued under the statutory licence by the Australian
Vice-Chancellors’ Committee. The universities argued that they were able to give a
number of notices to a collecting society and that those notices could cover a
number of different methods of copying. The Copyright Tribunal, however,
rejected that argument and held that a single election must be made.89
One of the consequences of this decision may be that the limited remuneration
notices issued by the universities were invalid and as such the statutory licence has
not in fact been invoked. However this issue remains unclear.
Over time, Copyright Agency Limited and the universities have entered into a
number of different licensing arrangements. There are currently three types of
licences under which universities copy materials.

Copying for students enrolled in university award courses

The 1989 Agreements covered those university students enrolled in award courses
for which enrolments were reported to Department of Education, Employment
and Training (DEET). As educational activities diversified, this single agreement no
longer provided adequate cover for universities. In 1990, Copyright Agency Limited
made an application to the Copyright Tribunal for a rate to be determined for
copying from academic journals. The Australian Vice-Chancellors’ Committee
argued that the conditions surrounding publication of academic journals was
markedly different from other journals; that the writing academics did was not for
payment but for recognition; and it was done in the course of their employment
(thus probably owned by the universities anyway). Copyright Agency Limited
argued that most of the copying that was done was of works authored by academics
in the UK or US and thus not indigenous to Australian universities. This case was
settled in 1991 when the Australian Vice-Chancellors’ Committee agreed to phase
in payment for copying from academic journals at the same rate per page as
copying from other journals.

Copying for continuing education students of the university

In 1992, Copyright Agency Limited, the Australian Vice-Chancellors’ Committee
and those universities which conduct continuing education courses entered into a
voluntary agreement to cover copying by students enrolled in those courses. The
licence fee for continuing education students is calculated as a proportion of the fee

averaged with the rates for 1995 and 1994 the number of copy pages for the 1997
payment is 451.3 pages, against 424 on which the 1996 payment was based.
89
The Court held that ‘the option given by the Act either to have equitable remuneration
determined on the old basis or on the sampling basis; but it seems to me this must be in
respect of one remuneration notice between each educational institution and each
collecting society in force at any one time. Otherwise curious anomalies . . . will emerge.’
(Re Application by Copyright Agency Limited; Copyright Agency Ltd v The University of
Adelaide & Others (1997) 38 IPR 633, 641).
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 Copyright in Universities

paid by the student for the course. This method of calculation is used because
universities do not keep records of the number of continuing education students.

Copying for administrative purposes of the university

This licence is often referred to as the staff copying licence. This licence covers
copying done by academic staff of universities. The issue of staff copying has been
a contentious issue and, not surprisingly, is one of the many issues currently before
the Copyright Tribunal for a determination. For a further discussion of the issues
relating to staff copying, see below.

4.3.4.8Current concerns with the Part VB licensing arrangements

A number of problems exist in relation to the current licensing practices under
Part VB. The areas of concern may be identified as follows:
• the increasing cost of copyright
• the practice of anthologising
• the definition of a ‘reasonable portion’
• the definition of ‘educational institution’
• what is covered by ‘copying for educational purposes’?
• staff copying
• student copying
• copying for external students
• educational copying of artworks
• digital copying
• electrocopying in closed reserve
• multimedia works
• whether the statutory licences are necessary?
Each will be examined in turn below. It is important to note that many of these
matters are currently the subject of two applications to the Copyright Tribunal. In
July 1996, the Australian Vice-Chancellors’ Committee filed the first of these
applications with the Copyright Tribunal to have the issues of electrocopying for
closed reserve determined. Almost simultaneously, Copyright Agency Limited filed
an application asking the Tribunal to consider a broad range of issues concerning
the current licences and the issue of digital copying by universities.90

90
Amongst other things CAL’s application seeks: (a) a higher rate for copying for the
purposes of ‘collections of readings’ or ‘anthologies’; (b) a higher rate for digital copying
generally; (c) a higher rate for electrocopying in Closed Reserve; (d) the payment of
equitable remuneration with respect to a wider range of the copying that is done for internal
staff purposes and for the purposes of external students, presently exempt from payment;
and (e) to impose fees for certain types of copying done by students including copying of
materials placed in Closed Reserve and the copying that allegedly takes place when a
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 Copyright in Universities

Given the wide ranging and important nature of the applications, it is important
that these issues be revisited after the Copyright Tribunal has made its
determination. As one commentator explains:
The case before the Tribunal is expected to be a lengthy, complex and expensive
exercise. In the course of such a case a great number of issues and arguments will
emerge about electronic copying, storage, transmission, screen displays and other
uses. In particular there will be close focus upon the issue of the monetary value of
these activities in the educational and commercial marketplaces. The real object
of entering into such complex and uncertain litigation is the hope that the rulings
in the Tribunal, and the issues clarified during the case, will form the basis for a
more informed set of negotiations between copyright owners and users, not only in
relation to closed reserved library copying for educational purposes but to many
other forms of electronic publication as well. (Griffith 1995, p. 28)

Increasing cost of copyright

Over the past three years, the cost of accessing copyright materials has increased
dramatically. For example, in 1995 the university sector paid $4.4 million to
collecting societies for Part VB copying; in 1997 it increased to approximately
$6.6 million.91 The cost of copyright to the education sector at large has not gone
unnoticed, e.g.:
Somehow there is a failure to understand the magnitude of the current diversion
of public funds designated for education which are paid to copyright collecting
societies. In 1995 universities paid $8 million in copyright licence fees. In 1996,
the various TAFE systems paid an estimated $3.5 million and in that year the
schools systems paid over $15 million.92 This total sum, of in excess of $25
million, is not an insignificant contribution by way of licence fees being paid to
copyright owners. (Best 1997, p. 2)
While the Australian Vice-Chancellors’ Committee accepts that universities have to
pay in order to access certain categories of information, they argue that the level of
payment ought to be realistic and that it not function to inhibit access (Australian
Vice-Chancellors’ Committee Submission 5.1, p. 4). The Australian Vice-
Chancellors’ Committee also believes that the concept of equitable remuneration
must, as the term implies, be kept within reasonable limits.
In response to arguments of this sort, the Australian Publishing Association (APA)
believes that ‘new and voluminous uses of copyrighted material are of necessity
going to involve higher payments to owners’. They also argue ‘that technological
developments will ensure less revenue in the future that was attainable in the ‘paper
days’, simply because of the enhanced ability of consumers to buy, electronically,

student browses on a computer screen a work which has been electrocopied into Closed
Reserve and which is later distributed over a local area network or the like.
91
For example, payments to Copyright Agency Limited per EFTSU in 1997 totalled
$6 656 213.23 (Department of Employment, Education and Training 1997, Table 35).
92
Various sources including 1997 submission to the Copyright Law Review Committee;
Kyrios 1994.
72
 Copyright in Universities

parts of works rather than wholes’ (Australian Publishers Association

Submission 4.5, p. 4).
The Australian Vice-Chancellors’ Committee, on the other hand, claims that the
amounts being paid by universities to copyright owners ‘are beginning to exceed
the likely additional revenue from sales by publishers were copying to be entirely
absent’ (Australian Vice-Chancellors’ Committee Submission 5.1, p. 4; see also
Australian Publishers Association Submission 4.5, p. 4). They also argue that not all
uses of copyright material should be paid for. It may be suggested that, to date,
universities have either been unaware or complacent about the amount of money
paid each year to collecting societies for the use of copyright works. Universities
must address the rising cost of copyright by better educating their staff and students
and better management of their own copyright.

The practice of anthologising

Section 135ZZH of the Copyright Act provides that a copy, record or version of a
work, sound recording or film made in accordance with a statutory licence for the
benefit of education or the intellectually disabled must not be sold or supplied for a
‘financial profit’ or used for other than the specified purpose (see ss 135ZZH(1)(a),
(b) and (2) Copyright Act 1968 (Cwlth)). If the copy is so sold, supplied or used, the
defence to infringement provided by the statutory licence does not apply
(s 135ZZH(1) Copyright Act 1968 (Cwlth)).
This section is relevant to the university practice of providing students with
anthologies of photocopied articles and chapters of books. One commentator has
aptly described anthologisation as follows:
Anthologisation is the compilation of ‘books’ of readings extracted from existing
sources, protected or in the public domain. It represents a new teaching
instrument that has emerged in an unforeseen intersection of circumstances. These
include the ease of copying vie repography; the expansion of student numbers,
without a corresponding provision of materials for study, whether by individual
purchase or by library holdings of all key texts in multiple copies; the greater
sophistication of reading lists; the better course preparation by teachers who now
not only read the set texts in advance but also ‘customise’ them into selections
tailor-made for a given course; and the high Australian price of printed books. If
the expansion of student numbers is in the general good, then so too it might
seem is anthologisation, understood as a means of providing—in the absence of
alternatives—for the support and success of ever large numbers of students.
(Saunders 1993, p. 3)
Some guidance to the meaning of ss 135ZZH(1) and (2) is provided Copyright Agency
Ltd v Victoria University of Technology ((1995) 30 IPR 140). This decision grew out of a
concern by publishers that the practice of anthologising was undermining their
markets. Although the statutory licences allowed for multiple copying, Copyright
Agency Limited, on behalf of their members, sued the Victorian University of
Technology claiming that this form of copying was outside the licence (Copyright
Agency Ltd v Victoria University of Technology (1995) 30 IPR 140). After hearing the
matter, the Copyright Tribunal held that, as the sale of material was on a cost-
recovery basis and not for ‘financial profit’ (within the meaning of s 135ZZH), it
was therefore within the statutory licence.

73
 Copyright in Universities

Despite the fact that Copyright Agency Limited lost its action against VUT, they
have continued to campaign for changes in relation to anthologies. For example,
they argued in their submission to the Copyright Law Review Committee on
educational copying that:
at present the market for the provisions of works to students of both non-profit
and for-profit institutions is subsidised by copyright owners through the operation
of the statutory licence. The irony is that government funded educational
institutions are competing with publishers—using publishers’ own products. This
is especially the case when educational institutions send bound copies of works to
students as course packs. Once the physical limits inherent in photocopying are
no longer an impediment because of the speed, volume quality and convenience of
digital use; digital copies will compete even more directly in the publishers'
primary markets. (Copyright Agency Limited Submission 4.7, p. 5)
In response, the Australian Vice-Chancellors’ Committee argued that the way in
which teachers present their course materials (as with the form in which they
choose to deliver) should be irrelevant.
It has been argued that the publishers’ belief that the distribution of ‘course packs’
to students replaces the purchase of textbooks is mistaken. It has been suggested
that an alternative to the distribution of a ‘course pack’ is that the lecturer hands
out a reading list and students make their own copies of the readings under the fair
dealing provisions of the Copyright Act. This, in turn, it is argued, would deprive the
publishers of the millions of dollars paid by universities to Copyright Agency
Limited (Mortley 1996, p. 8).
The question of the rate for copying for ‘collections of readings’ or ‘anthologies’ is
currently before the Copyright Tribunal. The outcome of this application will have
ramifications on the practice of anthologising and thus must be monitored closely.

Definition of ‘reasonable portion’

Where a work is separately published, the Copyright Act provides that a ‘reasonable
portion’ of the work may be copied. More than a ‘reasonable portion’ of the work
can only be copied if new copies of the work cannot be obtained within a
reasonable time at an ordinary commercial price (s 135LZ(2) Copyright Act 1968
(Cwlth)). In the case of separately published works in editions of more than ten
pages, ‘reasonable portion’ means ten per cent of the pages in the edition, or one
chapter, whichever is the greater (defined in s 10 (2) of the Copyright Act 1968
(Cwlth)).
It has been argued by the Australian Book Publishers’ Association that the
definition of ‘reasonable portion’ needs to be reconsidered. They suggest that the
amount is too large; that it fails to take into account the significance of the work to
be copied from it; that it does not provide an accurate calculation for the
quantification of a work in a digital form; and it enables the copier to pick and
choose the material taken within the maximum quantity permitted (Australian Book
Publishers Association Submission 4.2, p. 6).
Copyright Agency Limited agrees with the ABPA’s view that the quality of the work
being copied should be a factor for the Copyright Tribunal to consider when
determining equitable remuneration under the licence in Part VB (Copyright
Agency Limited Submission 4.7, p. 13). For works in digital form, Copyright
74
 Copyright in Universities

Agency Limited supports the introduction of a qualitative test to determine what is

a ‘reasonable portion’. It is CAL’s view that the definition of reasonable portion for
works in digital form cannot practically be a quantitative test, but can only be
determined qualitatively (Copyright Agency Limited Submission 4.7, p. 13).
The Australian Book Publishers’ Association (now the Australian Publishers’
Association) also has concerns that the Part VB scheme does not apply to the
copying of the whole or more than a reasonable portion of a work that has been
separately published, unless the work is not available within a reasonable time at an
ordinary commercial price. The Australian Publishers’ Association says that, as
licensing is now possible for the reproduction of a part of a work, the scheme
ought therefore be only applicable to copying of the whole or any part of the work
that is not commercially available (Australian Book Publishers Association
Submission 4.2, p. 6; see also Copyright Agency Limited Submission 7.4). It would
appear that such an approach would limit dramatically the operation of the
compulsory licence.

Definition of ‘educational institution’

Another contentious issue relates to the way in which ‘educational institution’ is
defined. As was discussed above, the definition of ‘education institution’ for the
purposes of Part VB copying was recently amended by the Copyright Amendment Act
1998 (Cwlth).
‘Educational institution’ was defined in detail in s 10(1) of the Copyright Act 1968
(Cwlth). By virtue of the definition, it was possible to determine those non-profit
institutions which were able to reproduce copyright works under relevant statutory
licences in the Copyright Act. It was felt by some that the distinction in the definition
of educational institution between those conducted for profit and those conducted
not for profit was ‘no longer relevant given recent policy changes, moves by non-
profit institutions to charge for entry into courses, increasing flexible modes of
delivery and the fact that educational copying is remunerable’ (State Library of New
South Wales Submissions 4.12).
Schedule 10 of the Copyright Amendment Act 1998 amended s 10(1) of the Copyright
Act 1968.93 The new section widens the range of institutions that can rely upon the
statutory licences. It does this by removing the requirement that an institution be
not-for-profit and by substituting a system of self-classification for the existing
certification processes. The new definition was criticised (Australasian Mechanical
Copyright Owners’ Society; Australian Performing Rights Association) on the basis
that it potentially increases the number of institutions and organisations that could
rely on the statutory provisions and as such would lead to an increase in copying
(Senate Legal and Constitutional Legislation Committee 1997, Chapter 5, Other
amendments in the bill, pp. 69–70). However, many supported the expanded

93
Both the Australian Vice-Chancellors’ Committee and Copyright Agency Limited
supported the suggestion by the CLRC that ‘for profit’ institutions come within the definition
of educational institution (Australian Vice-Chancellors’ Committee Submission 4.6;
Copyright Agency Limited Submission 4.7, p. 57).
75
 Copyright in Universities

definition of an educational institution as it more truly reflected the nature of the

contemporary educational institution.94

What is covered by ‘copying for educational purposes’?

There has been some uncertainty expressed as to what is covered by ‘copying for
educational purposes’ under s 135ZJ. The Australian Vice-Chancellors’ Committee
believes that as the copying which is undertaken by students is done for their own
research and study, they fall within the fair dealing provisions of the Copyright Act.
As such the Australian Vice-Chancellors’ Committee argues that it is not
remunerable copying. In opposition, the Australian Copyright Council has
suggested that ‘copying by students at an educational institution’ should be deemed
to be copying on behalf of the institution for educational purposes, if the copy is
made at the instruction or suggestion of the institution. They suggest that equitable
remuneration for such copying may be nil, but collecting societies should be
entitled to get information about such copying through their statistical sampling
procedures’ (Australian Copyright Council Submission 4.4, p. 22).
It is essential that the issue of what is covered by copying for educational purposes
be addressed. There is a need for clarification of the extent to which copying can be
done under the Part VB licence.

Copying for staff

A number of uncertainties exist in relation to the copying carried out by academic
staff. While for many years, universities claimed that most copying done by staff
was done under the fair dealing provisions of the Copyright Act (i.e. for their own
research and study), there is as yet no agreement between Australian Vice-
Chancellors’ Committee and Copyright Agency Limited as to whether copying
being done by staff for research and study purposes is remunerable copying or a
fair dealing. The Australian Vice-Chancellors’ Committee argues that the fact that
Copyright Agency Limited wants to include under the licence copying done by
academic staff for the purposes of research and study is an extension of Part VB
which would be untenable to the universities (Australian Vice-Chancellors’
Committee 1996b).
In opposition, Copyright Agency Limited argues that copying by staff should be
considered as copying by or on behalf of the educational institution. This would
mean that, for example, copying by staff for administrative, research, staff
development or other in-house use would be remunerable. In CAL’s view, ‘when
staff are employed by the educational institution to conduct research for a
university or private sector party, their use of copyright material should be treated
in the same way as research conducted in other commercial settings. But for the
existence of s 40(3) such research would be unlikely to be a fair dealing’ (Copyright
Agency Limited Submission 4.7, p. 8).

94
It is interesting to note that this amendment overrides the recent CLRC recommendation
that the Copyright Act be amended by omitting the definition of ‘educational institution’ from
s 10 and repealing s 10A (Copyright Law Review Committee 1998b, Recommendation
2.94 & para 9.15).
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 Copyright in Universities

It has been agreed between Copyright Agency Limited and Australian Vice-
Chancellors’ Committee that the single copies of copyright works made by staff
probably reflected fair dealing for research or study and accordingly were non-
remunerable. Agreement was reached whereby the Australian Vice-Chancellors’
Committee agreed to pay for multiple copies made by academic staff only. The
Australian Vice-Chancellors’ Committee argues that such multiple copies are
covered by the statutory licence under Part VB. In response, Copyright Agency
Limited argues that multiple copying is beyond the scope of the statutory licence
and therefore remunerable copying.95
The question of staff copying is currently before the Copyright Tribunal. As with
many of the other issues before the Tribunal, the outcome of this issue will have an
impact on the current practices of academics and their universities.

Student copying
Copying by students is done for the purposes of their own research and study and
therefore has always been considered to have fallen under the fair dealing
provisions of the Copyright Act.
Copyright Agency Limited argues that student copying should be expressly
excluded from copying for fair dealing purposes and should be included under
Part VB (Copyright Agency Limited Submission 4.7, p. 12). Copyright Agency
Limited believes that copying by students should be considered to be a licensed
copy made on behalf of the university at which they are enrolled. They are also of
the view that the operation of the closed reserve system is a way in which
universities authorise copying by students.
In its current application before the Copyright Tribunal, Copyright Agency Limited
is seeking to impose fees for certain types of copying done by students. This
includes copying of materials placed in closed reserve and the copying that allegedly
takes place when a student browses on a computer screen a work (which has been
electrocopied into closed reserve) which is later distributed over a local area
network or the like.
In opposing this position, the Australian Vice-Chancellors’ Committee argues that,
as student copying is currently exempt from remuneration under the fair dealing
provisions, it is reasonable to suggest that copying by students from electronic
storage, whether onto paper, disk or other electronic medium would come under
the provisions of fair dealing (Australian Vice-Chancellors’ Committee Submission
3.3, p. 1). If multiple copies are made, it is appropriate that such copying be
remunerable and covered under a licence agreement. Provided the copying comes
within the limits permitted for educational copying, it would be appropriate that
such electrocopying be covered under the existing agreement with Copyright
Agency Limited.

95
There was disagreement as to how much of the copying is single copying and how much
of the copying is multiple copying. The first sampling report for staff copying was produced
in 1996 and it indicated that 60–70 per cent of the copying for staff purposes was multiple
copying, while the rest was single copying. In 1997, however, it was found that there were
more single copies made than multiple copies (Australian Vice-Chancellors’ Committee).
77
 Copyright in Universities

The Australian Vice-Chancellors’ Committee supports the Copyright Law Review

Committee (1995a, 14.21) in its view that the Copyright Act be amended to confirm
that the Part VB licence should allow educational institutions to scan material into
computer memory for use by students, within the same limits and subject to
payment of royalties under licensing agreements.96

Copying for external students (presently exempt from payment)

Under the Copyright Act, copying for external students is considered ‘fair dealing’
under s 40(1A). This section provides:
A fair dealing with a literary work (other than lecture notes) does not constitute
an infringement of the copyright in the work if it is for the purpose of, or
associated with, an approved course of study or research by an enrolled external
student of an educational institution.
This important provision was put in place to compensate for external students’
inability to copy in institutional libraries under the fair dealing provisions. The issue
here is whether or not universities should pay equitable remuneration under the
statutory licence for copying done for external students. (This issue has been
discussed in more detail at Section 4.3.3.)
The Copyright Law Review Committee has recommended that the fair dealing
provisions be repealed as they properly fall within the fair dealing provision
(Copyright Law Review Committee 1998b, Recommendation 2.17; see also
para 6.111; Section 4.3.3).

Educational copying of artworks without payment (s 135ZM)

Educational copying of artworks has been the subject of recent amendment in the
Copyright Amendment Act 1998 (Cwlth). Under the old law, s 135ZM provided that
there was no copyright infringement if an artistic work was photocopied and it was
used to explain or illustrate a text of other materials copied under one of the three
licences provided for in Part VB of the Copyright Act.
VI$COPY argued that the old section was anomalous. Where an artistic work itself
was copied, payment needed to be made to copyright owners. However payment
was not required if the artistic work was copied with an article or other literary,
dramatic or musical work which it explains or illustrates. Copyright Agency Limited
was also of ‘the view that visual artists and their publishers should be entitled to
obtain equitable remuneration in the same way that copyright owners of other types
of works receive equitable remuneration’ (Copyright Agency Limited
Submission 4.7, p. 17). VI$COPY and the Copyright Agency Limited requested
that s 135ZM be repealed.97 The Australian Vice-Chancellors’ Committee
supported in principle the repeal of the section and that separate reporting and

96
Some provisions for digitised copying may need to be made in negotiation of the licence
fee paid for electrocopying into the database in the first place, where it has the potential to
replace licensed multiple copying (Australian Vice-Chancellors’ Committee Submission 5.1,
p. 7).
97
The Australian Copyright Council also supported the repeal of s 135ZM Copyright Act
1968 (Cwlth).
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 Copyright in Universities

remuneration requirements need to be introduced in its place. However universities

were concerned about the impact of any change place (Australian Vice-Chancellors’
Committee Submission 5.1, p. 10).
The recent amendment to s 135ZM clarifies that where an artistic work is copied
along with any text, which accompanies the artistic work, then the remuneration
payable to the author should be shared with the visual artists. This means that visual
artists will receive copyright payments to the same extent as other creators.
However, copyright payments by educational institutions will not increase because
of the new arrangements (Attorney-General’s Department 1998).98

Digital copying
One of the issues currently before the Copyright Tribunal is whether or not digital
scanning, storage and transmission of copies by educational institutions is permitted
under the special provisions for copying provided for in Part VB. As Sir Anthony
Mason has commented:
Some idea of the order of financial cost can be gained from the potential cost to
Australian universities of possible additional fees under statutory copyright
licences for use of materials in electronic reserve in university libraries, being
originally print materials converted electronically for display on screen. In the case
of University of NSW alone, the possible cost, accordingly to preliminary
calculations on a particular basis, could well amount to $2,800,000 annually.
What an expansion of copyright would cost over and above present fees is
impossible to estimate. In addition to the costs already mentioned, the intellectual
consequences to Australian of increased copyright protection are obvious. The
more we pay for overseas materials, the less we will be able to afford with possible
detrimental consequences for schools and university students. And this at a time
when Australian universities, research and educational institutions, including
libraries, are already facing the possibility of large reductions in government
funding. Those reductions could affect Australia’s present capacity to generate the
$2 billion overseas revenue which it presently generates from providing education
for foreign students. Increased copyright royalties can only reinforce that
unwelcome possibility. (Mason 1997a, p. 51)
While the Australian Vice-Chancellors’ Committee argues that the traditional forms
of copying should be extended to include the use of any copying technology, in
contrast Copyright Agency Limited argues that the language of the section could
not have anticipated such forms of copying as digital copying and thus that such
copying falls outside the Part VB statutory licence.
With the increasing use of digital copiers, there has been concern expressed by
Australian Vice-Chancellors’ Committee that copyright owners are considering the
possible licensing of the internal process of storing by defining it as a copy. The
Australian Vice-Chancellors’ Committee does not believe that a change in

98
In so doing, it overrides the recent CLRC recommendation that no change be made to
s 135ZM. The CLRC, however, suggested that the section should be repealed if appropriate
arrangements were made between the parties to provide compensation to owners of artistic
copyright in works (Copyright Law Review Committee 1998b, Recommendation 2.101 &
para 9.57).
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 Copyright in Universities

technology should result in the levying of a copyright charge where previously none
applied.
There has also been concern expressed by the Australian Vice-Chancellors’
Committee that, when dealing with digital uses of works, the provision of a
networked information structure may be seen as authorisation by the university of
copying in the same way as assumed in relation to the photocopiers in the 1980s. It
is thought that provision of a notice similar to that provided for in s 39A of the
Copyright Act 1968 on the network system would be sufficient to limit the
university’s liability for authorisation.
Copyright Agency Limited argues that the types of copying permitted by
universities should reflect the actual technology in use in those institutions and, as a
consequence, that the statutory licence should clearly include the use of all copying
technology. It also argues that the means by which copyright material is used
should be a factor for the Copyright Tribunal to take into account when assessing
the rate of equitable remuneration (Copyright Agency Limited Submission 4.7,
p. 11). Copyright Agency Limited believes that ‘ephemeral reproductions, such as
those made each time a work is accessed on screen by a user must clearly be
considered to be a reproduction within the scope of the statutory licence, not
merely on technical grounds, but because the copy is made for educational
purposes’ (Copyright Agency Limited Submission 4.7, pp. 8 & 12). Copyright
Agency Limited has suggested that the Copyright Tribunal regard these digital uses
as being covered by the educational copying provisions and, as such, ask that a
higher rate be set for this copying.
Another argument made in this context relates to s 135ZW(1) Copyright Act, which
provides:
Where a sampling notice is given by, or on behalf of, an administering body, the
amount of equitable remuneration payable to the relevant collecting society by the
administering body for licensed copies made by, or on its behalf, while the notice
is in force is such annual amount per student of the institution concerned as is
determined by agreement between the administering body and that collecting
society or, failing such agreement, by the Copyright Tribunal on application
made by either of them.
Copyright Agency Limited argues that s 135ZW restricts the Copyright Tribunal to
determining a rate for licensed copies as an amount per student. In CAL’s view, the
Copyright Tribunal should be able to determine the amount of equitable
remuneration payable in different ways, depending on the relevant circumstances of
the application. Copyright Agency Limited suggests it may be easier for copying of
works in digital form for a rate to be set based on access, numbers of copies made
or the period of time a work is available (Copyright Agency Limited
Submission 4.7, p. 18).99
The Australian Vice-Chancellors’ Committee suggests that, as universities now
teach a variety of courses over varying lengths of time and for many categories of
students, in some cases the requirement in s 135ZW has proved to be an

99
However, the rate suggested at one stage by the Copyright Agency Limited was a rate of
$5 per student per access which would result in an enormous increase in payment for
educational copying by students.
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 Copyright in Universities

impediment to determining how equitable remuneration is to be calculated. The

Australian Vice-Chancellors’ Committee recommends that the words ‘per student
of the institution concerned’ be deleted from s 135J(1) and s 135ZW(1) (Australian
Vice-Chancellors’ Committee Submission 5.1, p. 10).
With the proviso that the following list is not exhaustive, the Australian Vice-
Chancellors’ Committee has stated that ‘universities wish to be able to make use of
digital technology to provide educational material to students and staff, under the
Part VB licence, in the following ways:
• for material originally in non-digital format
– retain and make available both a hard copy and an electronic copy of any
item,
– scan hard copy and store electronically as image or text,
– pay reasonable remuneration at an agreed rate for the initial scanning, with no
charges for viewing or browsing items,
– archive scanned materials for an agreed number of years but not permit
public access, and
– make a temporary copy for sheet-feeding a scanner; and
• for all material whether originally in digital or non-digital format
– permit all students and staff of the university password access to the
electronic collection from any location in order to use the material associated
with the courses in which they are enrolled or the research they are
undertaking,
– mirror the contents of an electronic collection at each constituent site of a
university, and
– provide multiple concurrent access to an electronic item (Australian Vice-
Chancellors’ Committee Submission 3.5, pp. 3–4).100

100
The Australian Vice-Chancellors’ Committee also stated that ‘it would be reasonable to
expect universities: to restrict access to the university’s staff and students; display screen-
based copyright notices; include copyright notices at the commencement of each item
scanned; provide a full bibliographic citation at the commencement of each document and
to indicate the location of original page breaks; not alter the intellectual content of any item
prior or subsequent to scanning; take all reasonable care to ensure that staff and students
do not use material in contravention of the Copyright Act.’ However, that it would be
‘unreasonable for universities to be required under the Act or any agreement with copyright
owners to: warrant that students will not use material subsequently in contravention of the
Copyright Act; regard students as agents of the university; warrant the accuracy of scanned
items (although they may be expected to take all reasonable care to ensure accuracy);
monitor the printing of electronic items by students for their own use; destroy electronic
copies at the expiration of the period for which a licence has been granted. There is a
significant cost involved in the scanning of documents and it should be permissible to retain
items for re-use in an archive file for an agreed period; permit access only by machines
owned by the university; require copyright notices on every computer capable of accessing
the electronic collection; require universities to guarantee not to alter the layout of a
scanned document. This applies particularly to documents converted to ASCI format; require
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 Copyright in Universities

The Federal Government has recently confirmed that ‘the current statutory licences
which allow educational institutions to use copyright material, provided equitable
remuneration is paid to the copyright collecting society, will be extended to the
online environment. This will include copying material electronically and making it
available to staff and students over an intranet (Minister for Communications, the
Information Economy and the Arts 1998). Under the Government’s decision, if the
amount of remuneration cannot be agreed between the institution and the relevant
collecting society (Copyright Agency Limited), the Copyright Tribunal would have
jurisdiction to determine the amount. Educational institutions will also be able to
negotiate licences directly with relevant copyright owners (e.g. their academic staff)’
(Minister for Communications, the Information Economy and the Arts 1998).101
The Copyright Law Review Committee has recommended that educational
institutions be permitted to use all copyright material in digital form pursuant to a
statutory licence requiring the payment of a royalty (Copyright Law Review
Committee 1998b, Recommendation 2.100). It is useful to note the discussion of
the Committee contained in para 9.40 of the CLRC Report which states:
The Committee’s consideration of these matters was overtaken by the
Government’s announcement that the Part VB is to be extended to cover some
digital copying of works. The Committee understands that it has been decided
that educational institutions should be able to make and network digital copies
of works that have been published in print form on terms similar to the right
given to copy print works. The detail of the extension of the educational copying
licence was not announced at the time of the statement of principle.

Electrocopying in closed reserve

Another area of confusion relates to the status of materials which are copied from
closed reserve. The issue of concern here is whether or not the operation of the
Part VB licensing arrangements extends to electrocopying in closed reserve.102

universities to store and transmit documents as bit-mapped images; allow access to staff
and students by copyright owners of their representatives; agree to copyright owners or their
representatives owning usage data collected by the university; gain acknowledgment from
users at the beginning of each session that they will use material in accordance with the
Copyright Act provisions; pay for the use of copyright material on the basis or retrieval
(viewing) individual documents’ (at 4).
101
It is interesting to note the assumption made that not only do academics have copyright
in their works but also that they retain that copyright. This does not necessarily reflect the
current practice whereby many, if not most, academics are forced to assign their copyright
to publishers in return for being published.
102
‘University libraries are interested in mounting recommended readings onto electronic
databases as part of reserve collections. Journal articles or chapters from books can be
readily scanned and stored in electronic formats, particularly CD-ROM. The process is not
significantly different from that which currently applies where photocopies of journal articles
and chapters from books are made and placed within a reserve collection for use by
students. Universities currently pay Copyright Agency Limited remuneration for making such
photocopies. Having borrowed the photocopies students may then read them or make
further photocopies if they wish. Student copying is currently exempt from remuneration
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 Copyright in Universities

Copyright owners argue that the possibility of electrocopying103 means that once
material is placed into electronic storage on any form of network, it is accessible to
all regardless of the purpose of the use.
In response, the Australian Vice-Chancellors’ Committee argues that the process of
scanning materials for use in closed reserve is not significantly different from that
which currently applies under the fair dealing provisions. Photocopies of journals
and chapters in books are currently placed in the reserve collection and students
may borrow or copy these without being required to pay for this use. The
Australian Vice-Chancellors’ Committee considers that, provided copying comes
within the limits permitted by Part VB, it would be appropriate that electrocopying
be covered under an agreement with Copyright Agency Limited (Australian Vice-
Chancellors’ Committee Submission 1.1).
In 1995, the CLRC’s position on this was clear:
[t]he Committee . . . has seen nothing to suggest that the nature of use of
electrocopying was such as to warrant subjecting it to a general licence by virtue of
it being an act of reproduction. (Copyright Law Review Committee 1995a,
p. 253)
In their recent report, the Copyright Law Review Committee reaffirmed its 1995
recommendation that electrocopying not be excluded from applying to dealings for
the purpose of research or study.104
The Australian Vice-Chancellors’ Committee and Copyright Agency Limited have
been unable to agree on the appropriate rate of equitable remuneration to be paid
for electronic copying in closed reserve. This is currently the subject of the
proceedings brought by the universities against Copyright Agency Limited in the
Copyright Tribunal.

Multimedia creations
Universities are increasingly looking at the Internet as a means by which they may
deliver their courses. Multimedia is seen as one way in which this flexibility may be
achieved. Multimedia technology has been described as:
a situation where information is stored in two or more media may be
simultaneously accessed by a user in an interactive manner. The main mediums
are likely to be: text, visual images, moving images and sounds. In many, if not
all cases, the information is likely to be stored in an optical storage device such as
a CD-Rom. The co-ordination of the digital media for access to the user will be

under the fair dealing provision of existing copyright law. Storing those same articles in an
electronic format reduces significantly storage requirements and can greatly enhance access
and use by students.’ (Australian Vice-Chancellors’ Committee Submission 1.1, pp. 2–3)
103
Described by Fraser (1993) as ‘electronic copying includes the storage of pre-existing
print-based works and of works made available only or alternatively in machine readable
form; the on-line display of such works’ manipulation (including searching) of such works;
dissemination, for example the down-loading or networking of such works; and
reproduction of such works.’
104
With the exception of one member (Copyright Law Review Committee 1998b,
Recommendation 2.15 & para 6.92).
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 Copyright in Universities

achieved by a computer program. (Wei 1995, pp. 221–222, as cited in

McMahon 1997, p. 51)
Multimedia combines text, sound, animation, film and still images in a digital
form, all underpinned by computer software to enable the user to search, retrieve
and manipulate a work. Unlike traditional formats for books, music and film
(which are linear based), multimedia is non-linear so that the user can follow
their inclinations to tangentially access different parts of the work. As such, the
computer responds to, or interacts with, the user; the interactivity is a key feature
of computer-based multimedia. (Bowery 1995, p. 16 as cited in McMahon
1997, p. 51)
Multimedia creations pose a number of problems for universities.105 Given that
they are made up of a number of different works,106 in order to ensure that the
work is not infringed, it is necessary to get approval from all the individual
copyright owners. This is clearly a costly and time consuming process.107
Many multimedia producers, including universities, complain that the cost of
obtaining permissions to use copyright material is too high (see also Scott, M.D.,
‘Frontier issues: pitfalls in developing and marketing multimedia products’, Cardozo
Arts and Entertainment Law Journal , vol. 13, p. 417 cited in McMahon 1997, p. 50).
To overcome these costs, it has been suggested (see McMahon 1997a, p. 65) that
the introduction of a statutory licence which would allow multimedia producers to
reproduce whatever they wanted would be inconsistent with Australia’s obligations
under Berne108 and TRIPS (Article 13). The reason for this is that any legislation
which allowed for the use of copyright works without the permission of the owner
may conflict with the normal exploitation of the work and thus unreasonably
prejudice the rights of the copyright owner (Australian Copyright Council 1995,
p. 40; see also McMahon 1997, p. 49; McMahon 1997a, p. 66).

105
Currently the licence arrangements that the Australian Vice-Chancellors’ Committee and
the universities do not allow for copyright works to be used in a multimedia product. CAL’s
members, unsure of their rights in the digitising of their works, have refused to grant
permission for their works to be used. As it is unclear whether or not the current licences
allow for digital copying, it is necessary for universities, wanting to produce multimedia
works, to approach the individual copyright owners for permission to use their works.
106
Multimedia works are generally made up of a combination of a number of different
works including literary works such as computer programs, written text; artistic works such as
art work, cinematograph films including moving images; and sound recordings.
107
Indeed it has been pointed out that ‘the procedures for obtaining copyright clearances to
include pre-existing material in a multimedia product has been identified as a barrier to the
development of the multimedia industry in Australia and has resulted in requests for the
introduction of a statutory licence for the use of copyright material in multimedia products’
(Australian Copyright Council 1995, p. 39, citing Cutler and Company Pty Ltd, Commerce
in context: building Australia’s international future in interactive multimedia markets: a report
for the Department of Industry, Science and Technology, CSIRO and the Broadband Services
Expert Group, Canberra, 1994, pp. 21–22; Copyright Convergence Group 1994, p. 65).
108
Article 9(2) of the Berne Convention provides that the reproduction of works should not
conflict with a ‘normal exploitation of the work and does not unreasonably prejudice the
legitimate interests of the author’.
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 Copyright in Universities

One approach that may alleviate some of the problems that arise in this context is
to introduce a new category of subject matter eligible for protection such as
‘multimedia work’ or ‘multimedia product’ (Australian Copyright Council 1995,
p. 40). However this was rejected by the Copyright Convergence Group who
instead recommended that a new category of ‘audio-visual work’ be considered,
which would replace the category of ‘cinematograph film’ and possibly cover
multimedia products (Copyright Convergence Group 1994, as cited in Australian
Copyright Council 1995, pp. 40–41).
Screenrights is currently establishing a multimedia clearance service aimed at
bringing together buyers and sellers of copyright in audio-visual works. Screenrights
intend to act both as a collection agency and as a broker, allowing copyright holders
to negotiate with users and impose conditions on the use of materials (Osmond
1997, p. 11). There are also plans to develop a system for the electronic trading of
intellectual property rights, such as the Propogate project, which as yet has not
been fully developed (for the European Model Imprimatur, see Barlas 1997, p. 26).
Before universities were to become involved in such an electronic trading system,
great care must be taken to ensure that the current non-remunerable uses (e.g. fair
dealing) are reflected in such a system.

Are statutory licences necessary?

The Copyright Law Review Committee has raised the issue of whether the statutory
licence schemes are still necessary or whether the issues with which they deal ought
to be covered by voluntary arrangements with representatives of copyright owners
(such as Copyright Agency Limited). Should such voluntary licences be adopted,
the Copyright Law Review Committee has also asked whether it would also be
necessary to extend the powers of the Copyright Tribunal to deal with matters
relating to the terms of a licence (Copyright Law Review Committee 1997a).109
The Australian Book Publishers’ Association argues that the statutory licence
provided for in Part VB is no longer necessary in light of the existence of
Copyright Agency Limited. The Australian Book Publishers’ Association also
argues that it is contrary to Article 9(2) of the Berne Convention (Australian Book
Publishers Association Submission 4.2, p. 5).
Copyright Agency Limited suggests that with the advent of online digital
technology ‘the very need for any statutory licensing at all may need to be
considered’. Instead they have suggested, along with others (e.g. Australian Book
Publishers’ Association),110 that ‘it is possible that statutory licensing could

109
Also note the position of the UK: see ss 35 & 36 of the Copyright Designs and Patents
Act 1968.
110
The National Council of Independant School’ Association (NCISA) rejects this suggestion
and responds that ‘the three step test of Article 9(2) includes qualifying words which, in light
of developments at the WIPO Copyright Conference in 1996, must be read in such a way
as to give the test a wide application. It is clear from the Agreed Statements of that
Conference that the three step test is understood not to reduce the scope of applicability of
other limitations and exceptions permitted by the Berne Convention. Thus, it follows that
Article 10(2) of the Berne Convention, which allows the utilisation of works for teaching to
the extent justified by the purpose and provided such utilisation is compatible with fair
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 Copyright in Universities

eventually be replaced with a system of voluntary transactional rights clearances.

The contractual licences between universities and some CD-ROM providers
indicate that contractual means are being used to control the uses that can be made
of a copyright product supplied in a digital form. CAL’s centralised transactional
copyright clearance service provides another option’ (Copyright Agency Limited
Submission 4.7. For an example of the increasing role of contract, see the
discussion of the proposed Article 2B of the US Uniform Commercial Code at
Section 5.4)

4.3.5 Library copying provisions

4.3.5.1Introduction
Yet another way in which universities make legitimate use of copyright works is
through the library copying provisions of the Copyright Act 1968 (Cwlth).111 The
library exceptions ‘are in truth a recognition of, and follow on, the high public
purpose of copyright in promoting learning, culture and science.’ (Mason 1997,
p. 642). Universities rely heavily upon the library copying provisions to make copies
of copyright works for their students.

4.3.5.2A library’s ability to copy

Sections 48–53 of the Copyright Act provide for the copying of works in libraries.
Sections 49 and 50 form the basis of the library copying provisions. Section 49
provides that non-profit-making libraries or archives may make copies of published
literary, dramatic, musical and artistic works, for the purposes of research or study
of users of the library or archives without payment to the copyright owner on
certain conditions.112 Section 49(1) sets out the conditions of copying as follows:
A person may furnish to the officer in charge of a library or archives:
(a) a request in writing to be supplied with a copy of an article, or a part of an
article, contained in a periodical publication or of the whole or a part of a
published work other than an article contained in a periodical publication; and
(b) a declaration signed by him or her stating:
(i) that he or she requires the copy for the purpose of research or study and will
not use it for any other purpose; and

practice, must pass the three step test of Article 9(2)’ (see Australian Book Publishers’
Association Submission 4.2 & National Council of Independant Schools’ Association
Submission 4.11).
111
In response to the increasing use of reprographic equipment, the Spicer Committee
recommended the adoption of library copying provisions in 1959 broadly similar to those in
the 1956 UK Copyright Act (CLRC 1965, pp. 129–131); see also Australia Copyright
Council 1996, p. 10.
112
Also for artistic works, which are accompanying illustrations, see s 53 Copyright Act 1968
(Cwlth); see also Lahore, [44,025].
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 Copyright in Universities

(ii) that he or she has not previously been supplied with a copy of the same article
or other work, or the same part of the article of other work, as the case may be,
by an authorised officer of the library or archives.
It is useful to note that ss 49(2A) and 49(2B) provide, where a person, for reason of
the remoteness of their location, cannot furnish a request and a declaration for the
purposes of s 49(1), that a request may be made orally. For example, under
s 49(2A), persons in a remote location can make a request over the phone for a
copy to be made on their behalf so long as the copy is made for the purposes of
research or study.
Section 50 provides for copying of published works at the request of other libraries
or archives to provide copies for inclusion in their collections or other libraries or
archives, or to provide copies for users of other libraries or archives which have
requested copies for the purpose of their research or study.
With respect to the library copying provisions, Australian Council of Library and
Information Services, on behalf of libraries, has noted that:
It is public policy and a commitment to the principle of universal access to
information that is embodied in the free copying provisions. Reasonable access to
copyright materials is essential in order to effect the balance between owners and
users that ultimately facilitates benefit to society and the public. It is this benefit
that constitutes the basis on which the copyright regime is founded. It is clearly
the case that in some instances, people are simply not able to pay for knowledge
and information. It is also acknowledged by our current Copyright Act that
researchers, students and certain others are carrying out work and conducting
activities that are of substantial benefit to society. Thus in order to encourage
such work, we recognise that they should not have to pay, for the information
that they need to carry out this work, irrespective of whether they have the
financial means to pay. (Australian Council of Library and Information
Services Submission 2.1, p. 2)

4.3.5.3What may be copied?

Copying by libraries or archives is free copying and as such no payment is required
to be made to the copyright owner. There are limitations on what may be copied
under the library copying provisions.
The whole or a part of an article contained in an issue of a periodical publication
can be copied (s 49(1)(a) Copyright Act 1968 (Cwlth)). However the whole or parts
of two or more articles can only be copied from the same issue if the articles relate
to the same subject matter (s 49(4) Copyright Act 1968 (Cwlth)).
A ‘reasonable portion’ of a published literary, dramatic, or musical work can be
copied (s 49(5) Copyright Act 1968 (Cwlth)). A ‘reasonable portion’ is defined as not
more than 10 per cent of the number of pages of a published edition of the work of
not less than ten pages, or the whole or part of a single chapter of the work, where
the work is divided into chapters (s 10(2) Copyright Act 1968 (Cwlth)).
The whole of a published work, or an amount exceeding the ‘reasonable portion’,
can only be copied if the work forms part of the library or archives collection, and
if, before the copy is made, an authorised officer has, after reasonable investigation,
made a declaration stating that he or she is satisfied that a copy (not being a
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 Copyright in Universities

second-hand copy) of the work cannot be obtained within a reasonable time at an

ordinary commercial price (s 49(5) Copyright Act 1968 (Cwlth)).
Any artistic works which accompany the article or work for the purpose of
explaining or illustrating it may be copied under the library copying provisions (s 53
Copyright Act 1968 (Cwlth)). The Copyright Law Review Committee has recently
recommended that s 53 of the Copyright Act be repealed, on the basis that copying
currently permitted under this provision should be regulated by the proposed fair
dealing provision (Copyright Law Review Committee 1998b, Recommendation
2.56 & para 7.130).

4.3.5.4Concerns with the operation of the library copying provisions

A number of the concerns raised about the increasing cost of copyright within the
university community relate to materials purchased for and used by university
libraries. Libraries share the concerns of the educational sector as a whole of the
increasing cost of copyright and the future of copyright in Australia.
A number of specific concerns have been raised about the current operation of the
library copying provisions. Many of these were canvassed in the CLRC issues paper
on copying by libraries and archives (1997). Although many of these concerns are
similar to the concerns raised by educational institutions with respect to their ability
to use copyright works, it is useful to examine some of the problems from the
perspective of the university library.
Some of the issues raised with respect to the library copying issues paper are as
follows (Copyright Law Review Committee 1997):
• Whether the library provisions and archives provisions should be regarded as
falling within a general fair use exception?
• Should the library and archives provisions be omitted from the Act and replaced
with a voluntary licensing scheme?
• Should the definition of ‘copy’ found in s 49 encompass the reproduction of
digitally stored material? Should ‘copy’ be replaced with ‘reproduction in a
material form’ to be consistent with s 31(1)(a)(i) to cover copying of digital
material? (See Copyright Law Review Committee 1995a, Recommendation
2.47.)
• Requests made under s 49 Copyright Act 1968 (Cwlth).
• Should the provisions under Part III for copying of works have the same
operation with regard to the copying of sound recordings and cinematograph
films in Part IV?
• The definition of a ‘reasonable portion’.
• The issue of ‘browsing’.
Each issue will be examined in turn.

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 Copyright in Universities

Whether the library provisions and archives provisions should be regarded as falling
within a general fair use exception?
Section 49 of the Copyright Act provides that library copying is only allowed for the
purposes of research or study. This means that the operation of the library copying
provisions is much narrower in scope than the fair dealing provisions which allows
copying for a number of purposes, one of which is the purpose of research or
study. The libraries argue that, as an individual is allowed to copy under the fair
dealing provisions for a number of limited purposes, libraries’ ability to copy for a
person should be allowed on the same grounds. Copyright owners argue against
this on the basis that it would lead to an unjustified erosion of their markets.
The Copyright Law Review Committee has recommended that s 49 of the Copyright
Act be repealed and that copying by libraries and archives for users be governed by
the proposed fair dealing provision and the proposed quantitative test (Copyright
Law Review Committee 1998b, Recommendations 2.37 & 2.38 & para 7.59 &
7.60).
Universities should consider the impact that this recommendation may have upon
the practices of universities and their libraries and respond accordingly.

Should the library and archives provisions be omitted from the Copyright Act and
replaced with a voluntary licensing scheme?
One of the issues that has been raised is whether the library and archives provisions
ought to be omitted from the Copyright Act and replaced with a voluntary licensing
scheme. The reason for this is that copyright owners argue that libraries, as
information providers, are competing with publishers and, as such, should
remunerate copyright owners for uses of their works.
Australian Council of Library and Information Services, in response, points out that
if all uses of works are to be licensed or made remunerable, the copyright owner
would gain a new right to add to the bundle; the exclusive right to read. No
person will be able to read, or for that matter hear or see copyrighted material
without the permission of the owner. (Australian Council of Library and
Information Services Submission 2.1, p. 1)

Should the definition of ‘copy’ encompass the reproduction of digitally stored

material?
One of the other issues that has been raised is whether or not the ‘copying’
provision found in s 49 ought to cover digital copying.
Libraries claim that the application to provide reserve material in electronic format
under voluntary licence to their student population at the same rate as hard copy is
‘a prime example of where the technology has now been available for several years,
however due to the limitations of the current Copyright Act, publisher uncertainty
and collecting agency recalcitrance, the use of technology has been effectively
stymied’ (Council of Australian University Librarians Submission 2.5, p. 5). In
opposition, copyright owners fear that such digital copying will result in mass
dissemination of copyright works without due payment to the copyright owners.
The Australian Vice-Chancellors’ Committee has highlighted the advantages of
digital copying for libraries when they stated:
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University libraries are interested in mounting recommended readings on to

electronic databases for use as part of reserve collections. Journal articles or
chapters from books can be readily scanned and stored in machine-readable form,
including CD-ROM, ‘smart cards’ and other electronic storage formats. The
process is not significantly different from that which currently applies where
photocopies of journal articles and chapters from books are made and placed
within a reserve collection for use by students. Universities currently pay the
Copyright Agency Limited (CAL) remuneration for making such photocopies.
Storing those same articles in an electronic format reduces significantly storage
requirements and can greatly enhance access and use by students. Extension of
the present statutory licence to cover these activities is the AVCC’s preferred
option. (Australian Vice-Chancellors’ Committee Submission 5.1, p. 6)
It has been suggested by the Australian Vice-Chancellors’ Committee that under
Part VB copying, one permitted educational purpose is to include a copy of the
copies held in the reserve collection of the educational institution’s library. The
institution must pay equitable remuneration for making of the copies, and most
educational institutions have served remuneration notices upon Copyright Agency
Limited. Some university libraries wish to be able to scan material into computer
storage and to permit students to view the work by screen display, and perhaps to
download a copy. The Australian Vice-Chancellors’ Committee argues that the act
of scanning and storage falls within the meaning of making a copy within the
relevant sections.
The libraries submit that the Copyright Act should be amended to allow them to
supply electronic copies of materials to their users without infringing copyright. As
Australian Council of Library and Information Services suggests, ‘copying under
these sections is currently allowed at no cost and should remain so. Copying under
these sections does not include copying under voluntary licences. In this case why
should this change for electronic copies?’ (Council of Australian University
Librarians Submission 2.5, p. 5). Such an amendment would facilitate access to
library materials by persons in remote areas. It is agreed that payment should be on
the same basis as that for hard copies under voluntary licences. This is supported by
the CLRC’s Computer Software Protection report.113
Of the issues facing the libraries’ use of copyright works, Sir Anthony Mason had
the following to say:
The issues mainly arise out of the uncertain operation in the digital environment
of the existing library exceptions, particularly in relation to transmission between
libraries. Digital storage and transmission offer economic advantages for
libraries, including university libraries . . . The question is what impact will
these developments have upon the copyright owner’s market. With books, it could
be that the impact on sales could be significant. With journals, there is no reason
to think that subscriptions would by significantly affected. The user, whether
student or researcher, is interested in the article, not the journal, and it is most

113
Recommendation 2.47 specifically provides that ss 49 and 50 be amended to ensure
that libraries are able to make electronic copies, including electronic transmission of a copy
stored in digital form, available to users within the limits as currently apply to the making of
hard copies (Copyright Law Review Committee 1995).
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unlikely that, but for the availability of the article online at the library, he[/she]
would subscribe to the journal. (Mason 1997, p. 642)
The majority of the Copyright Law Review Committee has recommended that no
special provision be included in the Copyright Act to permit libraries and archives to
digitise copyright material held in their collections for the purpose of making digital
copies available for browsing by users (Copyright Law Review Committee 1998b,
Recommendation 2.67 & 2.68 & para 7.183–7.185).
Universities should give consideration to the effect that such a recommendation
will have upon current university library practices and lobby accordingly for
appropriate changes.

Requests made under s 49 Copyright Act 1968 (Cwlth)

Under s 49 a person may make a request to a library for a copy to be made for the
purpose of their own research and study. With the increasing use of technology,
libraries are now receiving requests for inter-library loans via email. On a technical
reading of the section, however, it is not clear whether libraries are able to take such
electronic requests.
In order to alleviate these problems, libraries want s 49 to include requests made
electronically (e.g. via email). Copyright owners express concern that such
electronic requests may result in an increase in false declarations under the Copyright
Act as to the purpose of the use of the work. Whilst it is recognised that the notion
of a written request for materials under s 49 discourages the making of false
declarations, libraries suggest that the use of personal identifier numbers or
verification against a registration of users be adopted as a means of satisfying the
need for some form of ‘electronic signature’ (Australian Council of Library and
Information Services Submission 2.1, p. 3).
To rely upon s 49, a library user must be able to specify the particular article or
work they want copied. However, it is often difficult for users in remote areas to
specify the particular article they want, as they are unaware of the bibliographic lists.
For example, external students researching for assignments are often unaware of
what has been written in a particular field, so they are then unaware of what to ask
to have copied.
Libraries have suggested that they should be able to provide a subject list of
materials to such students to assist them in their choice (Australian Council of
Library and Information Services Submission 2.1, p. 5). In response, copyright
owners argue that the copy cannot be claimed to be for legitimate research or study
if the students do not know what they are looking for. One of the suggestions in
the CLRC Library Copying Issues Paper is to have libraries provide a list from
which the students choose a particular work for the purposes of copying under
s 49(2A).
With the exception of one member, the Copyright Law Review Committee
recommended ‘that a library or archives be able to conduct a dealing by way of
copying under the quantitative test on behalf of a user in response to a verifiable
request by a user stating that the copy is for the purpose of their own research and
study and that they have not previously been supplied with a copy of the same
article or other work or the same part of the article or other work, as the case may
be, by a library or archives’ (see Copyright Law Review Committee 1998b,
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Recommendation 2.42 & para 7.71).114 It also recommended that ‘no special
provisions be introduced into the Copyright Act to permit a library or archives to
give effect to a remote user’s request to copy unspecified works on a specified
subject rather than with respect to a particular work. Copying by libraries and
archives for remote uses should be regulated by the principles of fair dealing’
(Copyright Law Review Committee 1998b, Recommendation 2.46 & para 7.93).

Should the provisions under Part III for copying of works have the same operation
with regard to the copying of sound recordings and cinematograph films in Part IV?
Libraries believe that the operation of the copying provisions in Part III should
have the same application to the subject matters in Part IV of the Copyright Act.
Currently it is not possible for libraries to copy sound recordings and
cinematograph films for an individuals’ research or study.
In its recent report, the Copyright Law Review Committee recommended that ‘the
library and archives provisions be amended so that the copying of whole works or
parts of works and subject matter other than works for users and other libraries is
treated consistently (subject to a dealing with a prescribed portion being confined
to printed published works)’ (Copyright Law Review Committee 1998b,
Recommendation 2.28 & para 7.21).115

The definition of a ‘reasonable portion’

Section 49(5) provides that a ‘reasonable portion’ of a published literary, dramatic,
or musical work may be copied. Currently a ‘reasonable portion’ is not more than
10 per cent of the number of pages of a published edition of the work of not less
than 10 pages, or the whole or part of a single chapter of the work, where the work
is divided into chapters. The term ‘reasonable portion’ only applies to works.
The Copyright Law Review Committee has raised the question as to whether
‘reasonable portion’ should apply to subject matter other than works? Australian
Council of Library and Information Services supports the introduction of
provisions similar to ss 49 and 50 allowing libraries to copy and supply reasonable
portions of sound recordings, films, or multimedia to users who request such
material for fair dealing purposes (Australian Council of Library and Information
Services Submission 2.1, p. 2).
Copyright owners have suggested that the amount allowed as a ‘reasonable portion’
should be reduced to 5 per cent of the total number of pages or 75 per cent of one
chapter. It has been argued by the libraries that this will not go any way to

114
The majority of the Copyright Law Review Committee has recommended that where a
library or archives conducts a dealing by way of copying on behalf of a user under the
proposed fair dealing provision, the user’s purpose be regarded as the relevant purpose in
ascertaining the ‘fairness’ of the dealing (Copyright Law Review Committee 1998b,
Recommendation 2.39–2.41 & para 7.64–7.66).
115
The Copyright Law Review Committee also made a number of recommendations on the
copying and publication of unpublished works, sound recordings or cinematograph films
held in libraries or archives (Copyright Law Review Committee 1998b, Recommendations
2.57–2.65).
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addressing the concerns raised by copyright owners about what constitutes a

‘reasonable portion’. Australian Council of Library and Information Services
strongly supports the retention of the 10 per cent of one chapter quantitative test
for print materials and appropriate adaptation of the test to the digital environment
(Australian Council of Library and Information Services Submission 2.1, p. 4).
The Copyright Law Review Committee, with the exception of two members,116 has
recommended ‘that sections that maintain the mandatory effect of the current
ss. 49(3) and 49(5) of the Act be excluded from the proposed fair dealing provision’
and that ‘the mandatory effect of the current s 49(3) be included as part of the
proposed quantitative test’ (Copyright Law Review Committee 1998b,
Recommendations 2.44–2.45 & para 7.79 & 7.82).117

Section 39A Notice?

The question has arisen as to whether or not s 39A118 should be amended to
provide for a notice with the display of the work that advises users of the database
of the copyright obligations of producing a copy. This would be consistent with the
recommendation of the CLRC’s computer software protection report (Copyright
Law Review Committee 1995, in particular recommendation 2.48). The Copyright
Law Review Committee recommended that s 39A be amended to read as follows:
(b) where a work is stored on a library or archives database is displayed via a
computer terminal made available to users, the library is required to incorporate
a notice with the display of the work that advises users of the database of the
copyright obligations incurred by printing out the work.
The Copyright Law Review Committee has recommended that s 39A of the
Copyright Act be extended to apply where any copyright material in the collection of
a library or an archive is accessible via a computer terminal made available to users
(Copyright Law Review Committee 1998b, Recommendation 2.69 & para 7.192).

The issue of ‘browsing’

Another issue that relates to the question of whether or not browsing ought to be a
remunerable activity is the role the library plays in the delivery of information to the

116
The dissenting Committee members recommend that the effect of ss. 49(3) and 49(5) be
retained in the Act; see also Copyright Law Review Committee 1998b, para 7.79.
117
They further recommended that a library or archive be able to conduct a dealing by way
of copying under the quantitative test on behalf of a user on a cost-recovery basis only.
118
Section 39A of the Copyright Act 1968 (Cwlth) provides: Where (a) a person makes an
infringing copy of, or of part of, a work on a machine for the making, be reprographic
reproduction, of copies of documents, being a machine installed by or with the approval of
the body administering a library or archives on the premises of the library or archives, or
outside those premises for the convenience of persons using the library or archives; and (b)
there is affixed to, or in close proximity, to the machine, in a place readily visible to persons
using the machine, a notice of the prescribed dimensions and in accordance with the
prescribed form, neither the body administering the library or archives nor the officer in
charge if the library or archives shall be taken to have authorized the making of the infringing
copy by reason only that the copy was made on that machine.
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wider community. Libraries have suggested that the viewing within libraries, or
‘browsing’ of digital copies of copyright materials, should be provided for under the
Copyright Act (Copyright Law Review Committee 1997, p. 8). The Copyright
Convergence Group briefly considered the issues arising from the changing role of
libraries in the context of digital deliveries of information (Copyright Convergence
Group 1994, para 7.1):
The effect of these developments is that the balance between the public policy of
free access to information in libraries and the right of copyright owners to receive
equitable remuneration for their works will increasingly be tested as some
libraries add commercial information provision to their traditional role as
physical repositories of information for the public benefit.
If copying is done in a library or educational institution, it has been suggested that
users could warrant on screen that they intend to use the work for research or study
and that they will not retransmit the work. Another possibility is that if, as seems
likely, licence fees are to be paid instantaneously when a work is downloaded, then
those fees could be waived if the access was made from a library terminal or an
educational institution (Brundenall 1997, p. 150).

4.3.5.5The CLRC Report

The CLRC Report has made a number of recommendations with respect to the
library copying provisions. They have recommended, inter alia, that:
• the provisions regulating the making of royalty-free copies of copyright material
by libraries and archives remain in the Copyright Act, but in a simplified form
(Copyright Law Review Committee 1998b, Recommendation 2.27 & para 7.12);
• all the library copying provisions in the Copyright Act apply to all libraries,
whether or not they are conducted for profit (Copyright Law Review Committee
1998b, Recommendation 2.29 & para 7.28);119 and
• s 50 of the Copyright Act be repealed and that copying by libraries and archives
that was previously done under s 50 be governed by the proposed fair dealing
provision and the proposed quantitative test (Copyright Law Review Committee
1998b, Recommendation 2.47 & para 7.97).120
A number of recommendations were also made concerning the copying of works,
sound recordings and cinematograph films for preservation (Copyright Law Review
Committee 1998b, Recommendations 2.50–2.55 & para 7.108–7.124).
It will now be necessary for universities to monitor developments in this field, as
the future shape of the library copying provisions will have a lasting impact upon
the university sector. It has long been accepted that public interest demands a

119
. Subject to this recommendation, the CLRC has recommended that s 18 of the Copyright
Act be repealed (Copyright Law Review Committee 1998b, Recommendation 2.30 & para
7.33).
120
Two committee members recommended that this be subject to the condition that the
proposed fair dealing provision be drafted to restrict copying by libraries and archives in
ways similar to that now provided for in ss 50(6) and 50(7) of the Copyright Act (Copyright
Law Review Committee 1998b, Recommendation 2.48).
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continuation of the library provisions under the Copyright Act. These provisions
recognise the special role that libraries play in society and ensure that reasonable
access to copyright materials is facilitated (Australian Council of Library and
Information Services Submission 2.1, p. 1).

4.3.6 Miscellaneous copying provisions

Copyright law provides for certain special exceptions which relate to particular uses
of copyright material. These exceptions are extremely limited in their operation and
give minimal rights to universities to use copyright material without being held
liable for infringing copyright.

4.3.6.1Performances of copyright material (s 28)

Section 28 provides that where a literary, dramatic or musical work is performed in
class, or in the presence of an audience, by a student or teacher in the course of
educational instruction, then that performance shall not be a performance in public,
if the audience is limited to those taking the class or otherwise directly connected
with the place of instruction. This defence is limited to the classroom situation and
would not cover a performance of a work before an audience—e.g. the
performance of a play by students for their peers or family.121

4.3.6.2The inclusion of copyright works in collections (s 44)

Section 44 provides that use of a short extract from a work included in a collection
of works intended for use by places of education is not an infringement of
copyright, if certain conditions are met. The conditions are set out in s 44(2).122 A
number of submissions made to the Copyright Law Review Committee has
suggested that, as this section is rarely relied upon, this section has now become
obsolete (e.g. see Copyright Agency Limited Submission 4.7, p. 19). The Copyright
Law Review Committee has recently recommended that s 44 of the Copyright Act be
repealed (1998b, Recommendation 2.96 & para 9.23).

121
The Copyright Law Review Committee in its recent report recommended that no change
be made to the scope of s. 28 of the Copyright Act (Copyright Law Review Committee
1998b, Recommendation 2.95 & para 9.19).
122
The most important of these are: that the work must not have been intended for use by
places of education; that the collection must consist ‘principally of matter in which copyright
does not subsist’; and that two or more extracts from other works of the same author are not
included in the collection or any other collection published by the same publisher within the
last five years.

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4.3.6.3The reproduction and adaptation of copyright works

(s 200(1))123
This provision allows certain legitimate uses of copyright works and only applies in
very limited circumstances. For example, a reproduction or adaptation of a work
used as part of an examination question or answer or where a reproduction is made
other than by means of a multiple copying machine.124

4.3.6.4The recording of broadcasts: ss 200(2) and (2A)

A record can be made of a sound broadcast without infringing copyright if it is
made by an educational institution and is only used for educational purposes. (See
also a similar provision for institutions assisting intellectually disabled persons:
s 200AA Copyright Act 1968 (Cwlth).)

4.3.6.5Multiple copying of insubstantial portions of works for courses

of education in educational institutions (s 135ZG)
Small amounts of a literary or dramatic work, excluding a computer program or a
compilation of computer programs, may be copied on the premises of an
educational institution, for the purposes of a course of education provided by that
institution, within a specified period of time and without any payment to the
copyright owner. This is not a fair dealing provision nor is it a statutory licence for
which remuneration is payable. It may not be necessary to copy pursuant to the
statutory licence if the copying of small amounts can be carried out without
payment or formality.
The operation of these miscellaneous copying provisions were recently examined
by the Copyright Law Review Committee in its issues paper, Miscellaneous exceptions
to exclusive rights of copyright owners.
In its report, the Copyright Law Review Committee made a number of
recommendations with respect to the miscellaneous exceptions. The
recommendations relevant to this report are that all miscellaneous exceptions
provisions be located in one part of the Copyright Act and that the provisions be

123
Section 200 excepts three activities from what would otherwise be an infringement of an
owner’s copyright: (i) the reproduction or adaptation of a literary, dramatic, musical or
artistic work is not an infringement where it takes place in the course of educational
instruction and is made by using an appliance incapable of producing multiple copies of the
work or making copies by a process of reprographic reproduction; or is made or
reproduced as part of an examination; (ii) The making of a recording of a sound broadcast
by an educational institution is not an infringement of the copyright in the broadcast if the
record is used for the educational purposes of the institution or another educational
institution. where a sound broadcast is intended for educational purposes, the copyright in a
work or sound recording of the broadcast if the record is not used except in the course of
instruction at that institution.
124
The Copyright Law Review Committee has recommended that no change be made to
s 200 of the Copyright Act (Copyright Law Review Committee 1998b, Recommendation
2.97 & para 9.31).
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organised within the ‘Miscellaneous exceptions’ part in terms of the exclusive rights
of copyright to which they relate (Copyright Law Review Committee 1998b,
Recommendation 2.71 & para 8.06).125

4.4 Recommendations
The issue of the use which is made of copyright works within universities gives rise
to a range of complex and contentious issues, perhaps the most important being
the ever-increasing costs associated with use. Despite the fact that the amount of
money that is paid to the various collecting societies has increased dramatically in
the past five years,126 universities have largely remained complacent about the
spiralling costs of copyright and the impact that this has had on universities.
Universities, both collectively and individually, must pay more attention to
copyright.
A number of changes need to be made to ensure that the costs of use of copyright
works, particularly in the online environment, remain at a reasonable level.

4.4.1 Education
Universities should establish an education program with respect to copyright. One
of the objectives being ‘to generate a better understanding of intellectual property
issues in general, and so contribute to the creation within the university of a more
co-operative and productive environment for teaching and learning and research’
(National Tertiary Education Industry Union 1994, Clause 10(2)(c)).
There needs to be education of academic and general staff about use (and cost of
use) of copyright works. Clear guidelines need to be provided for all sections of the
university community in relation to the copyright implications in their teaching and
research (AAU Task Force on Intellectual Property Right in an Electronic
Environment 1994, p. 12). There is a need for programs for information,
discussion, involvement and support, through standard contracts and licences, as
well as information about academic publishing and publishers.
Such education programs should aim to promote a better understanding of
copyright, particularly with respect to the use of digital technologies.127

125
The Copyright Law Review Committee also made a number of further
recommendations—e.g. recommendations 2.73–2.84.
126
An example of the increasing costs is given by Queensland University of Technology. In
1996 Queensland University of Technology paid approximately $508 600 in copyright
licence fees, the bulk of which was paid to Copyright Agency Limited ($282 705) and Audio
Visual Collecting Society ($223 385).The 1996 figure represented an increase of charges
from 1995 of almost 80 per cent. Given that charges are based largely on the year’s
EFTSU, it is of concern that the 1996 EFTSU showed only an increase of 6.26 per cent over
the 1995 figure.
127
More specific objectives might be those suggested by the American Association of
Universities (AAU) Task force—i.e. ‘(i) facilitating the re-use of copyright works in classrooms
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 Copyright in Universities

4.4.2 Development of intellectual property policies for

use of copyright works within universities
Universities should consider implementing policies in relation to the use,
distribution and control that is made of copyright works. Policies and strategies for
use of copyright works would not only focus attention on the issue of use of
copyright works but would also assist universities and their staff to better manage
the use that is made of copyright material within the university sector.

4.4.3 Encouragement of academic staff to join

Copyright Agency Limited
All academic authors should be encouraged to join Copyright Agency Limited.
While Copyright Agency Limited collects monies under the statutory licence on
behalf of all authors, Copyright Agency Limited is only able to distribute to authors
who are members of Copyright Agency Limited. As a result, each year Copyright
Agency Limited has monies it is unable to distribute. Academic authors who have
retained copyright in their works and who are not members of Copyright Agency
Limited may be entitled to monies for the copying of their works. This would assist
in the return of some of the cost of copying paid to collecting societies to the
university sector.

4.4.4 Committment of resources

Greater resources need to be committed to copyright management in the university
sector. In addition to committing more resources to aid in education about
copyright, greater resources should also be committed to aid universities in
lobbying for legislative changes appropriate to protect the universities’ interests.
It is well known that the copyright owners are a powerful lobby group with many
resources committed to the protection of their rights.128 It is imperative that
universities are given an equally powerful voice in relation to copyright reform. To
assist in the work that has already been done, there is a need for further funds to be
committed to copyright positions for the Australian Vice-Chancellors’ Committee,
similar to the positions that organisations such as Australian Council of Library and
Information Services has established.129 Similarly, all universities should have
persons who are responsible for the management of copyright.

and the library, (ii)securing publications under terms more favourable to higher education
and (iii) reducing the cost to universities of journal subscriptions, particularly for scientific,
technical and medical titles’, AAU Task Force on Intellectual Property Right in an Electronic
Environment 1994, p. 23.
128
As the Australian Vice-Chancellors’ Committee has pointed out ‘copyright owners are a
powerful lobby group which seeks to establish their bargaining positions in the new markets
by seeking changes to the legislative scheme to create new subject matters, new forms of
rights and new mechanisms for payment (Australian Vice-Chancellors’ Committee
Submission 5.1, p. 4).
129
The position of the university library is strengthened as various organisations at the
national level in Australia, ‘within the library and archive community are undertaking
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4.4.5 Greater attention to be paid to the costs of

copyright
It is imperative that the costs of copyright be factored into decisions being made
about future developments in teaching, learning, research and scholarship. With the
increasing commitment being made to information technology, greater
consideration needs to be given to the copyright implications that the use of such
technology creates. 130

4.4.6 Monitoring role

To ensure universities are able to respond appropriately to, and hopefully shape,
changes taking place in the legal environment, current developments in copyright
law taking place at the national and international level need to be monitored.
Universities should also monitor developments in other areas of the law which
impact upon their copyright practices, notably moral rights, contract law,131 trade
practices law and the proposed sui generis protection for databases.

4.4.7 Lobby for change

Universities must be in a position to contribute to the development and reform of
copyright law in Australia. A collective voice representing universities’ interests on
copyright issues is needed to respond to the powerful lobby groups that represent
copyright owners. In addition to the considered responses made on behalf of the
university sector on the recent proposed reforms of copyright law, consideration
should also be given to lobbying for the following.

activities which are of relevance to the preservation of digital information . . . ACLIS and the
NPO and also at the National Library, the office of the Distributed National Collection
(DNC) and the National Document and Information Service (NDIS, also in collaboration
with the National Library of New Zealand)’ (Griffith 1995, p. 7).
130
The Australian Vice-Chancellors’ Committee has identified copyright as an important
issue associated with the application of information technology to the learning experience,
as well as the importance of the publishing issues relating to the application of information
technology to information resources (Australian Vice-Chancellors’ Committee n.d., pp. 5,
7). Often copyright is an after-thought in IT budgets which often do not reflect the true costs
of online delivery.
131
It has been suggested that digital technology will alter the balance between the informal
distinction that has developed between the private and public uses of a work, and that
contract law will play an ever increasing role between copyright owners and users (Dreir
1996). Ginsburg agrees, ‘from the provider’s point of view, contract may therefore prove a
more attractive means of obtaining the same, or more, protection than that available under
copyright law . . . However, from the user’s point of view, a contract regime, if it eludes
user-rights available under copyright, drives a one-sided bargain for access to information,
to the detriment of the balancing of rights set forth under copyright’ (Ginsburg 1994,
pp. 221–224).
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4.4.7.1Support and adoption of appropriate CLRC recommendations

Universities should consider the impact of the CLRC recommendations upon their
current copyright practices and support them where appropriate.
Support should be given to :
• the recommendations for an open-ended model of fair dealing; and
• the recommendations for the simplification of the educational copying
provisions.
Universities should carefully consider the recommendations concerning library
copying provisions. Particular attention should be given to the impact these
recommendations may have upon university practices.

4.4.7.2A review of collecting societies

Universities should lobby for a comprehensive review into the practices of
collecting societies. The Simpson Report (1995) outlined current practices of
collecting societies and made certain recommendations which are currently being
considered by the Government. A number of important changes, notably as a
consequence of digital copying, have taken place since the Simpson Report was
completed. These changes necessitate a re-examination of the practices of
collecting societies.

4.4.7.3A broader jurisdiction of the Copyright Tribunal

For some time, there have been calls for the broadening of the jurisdiction of the
Copyright Tribunal. Australian Council of Library and Information Services (1995,
p. 27), for example, supports the comments made in the Simpson Report that:
The Copyright Tribunal should have jurisdiction over all collectively administered
licensing schemes . . . All collecting societies’ licence fees and conditions should be
open to the potential scrutiny of the Tribunal simply because some arbitration
mechanism is an essential requirement for the establishment of a working
relationship between the society and users of its members’ property.
It has been suggested that the jurisdiction of the Tribunal now seems overly
narrow:
It therefore seems vital that the jurisdiction of the Copyright Tribunal be
widened, and resources increased to ensure that every licence scheme offered by
collecting societies is subject to the tribunal’s authority and the Tribunal can
examine questions of anti-competitive behaviour. (Brudenall 1997, p. 129)
In the Simpson Report, it was recommended that that Tribunal should have ‘as
wide a jurisdiction as possible in respect of licences and licence tariffs including the
variation, approval and interpretation of all licensing schemes whether the relevant

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rights are administered under voluntary of statutory licence.’ (Simpson 1995,

32.5).132
For a more detailed discussion of the likely future developments impacting upon
copyright law and universities’ current practices with respect to copyright, see
Part 5.

132
The Simpson Report also recommended the establishment of a position of Ombudsman
of Copyright Collecting Societies which could independantly investigate disputes between
collecting societies and users (see Simpson 1995, 32.5).
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5. Future developments

5.1 Introduction
In considering the nature of the challenges facing universities with respect to
copyright, it is important to examine the possible changes that may occur in the
future in copyright law and in other related fields of law. In order to ensure that
universities are able to respond appropriately to, and hopefully shape, these
changes, it is important that universities examine the effect that these changes may
have upon the university sector. It is also important that universities monitor and
become actively involved in the future of copyright reform.

5.2 The proposed digital agenda reforms

In July 1997, the Australian Government released a discussion paper, Copyright
Reform and the Digital Agenda.133 The discussion paper raises a number of issues of
relevance to university sector. These are:
• the new rights
– the transmission right,
– the right of making available,134 and
– the retransmission right;
• the proposed exceptions
– the exception for temporary and incidental copies,
– the exception for browsing,
– the exceptions for fair dealing,
– transmission or making available of fixed performances and sound recordings
in educational contexts, and
– the exceptions for libraries;

133
The purpose of which was two-fold: i) to seek the views of the community on the
legislative scheme to reform copyright law to respond to the challenges posed by new
technologies and the online environment; (ii) to seek comments from the community in
relation to whether Australia should implement important obligations in and thus sign the
new WIPO Treaties, the WIPO Copyright Treaty and the WIPO Performances and
Phonograms Treaty.
134
The Government has indicated that the transmission right and the making available right
will be conflated into a broad ‘communication to the public’ right (see Attorney-General
and the Minister for Communications, the Information Economy and the Arts 1998).
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• the liability of Internet providers; and

• the new enforcement measures (Australian Vice-Chancellors’ Committee
Submission 3.3 ).

5.2.1 The proposed new rights

It is important to note that in the Digital Agenda paper two new rights were
proposed: the right of transmission and the right of making available. When the
Federal Government later gave its commitment to the digital agenda reforms,
however, the Attorney-General referred to a broad right of communication to the
public (Attorney-General and the Minister for Communications, the Information
Economy and the Arts 1998). Hence it appears that the two rights have been
conflated into one broad technology-neutral right. As yet, no final announcement
has been made as to the form the new right(s) will take. As the submissions made in
response to the Digital Agenda paper were framed in response to the two rights, it
is nevertheless useful to examine the concerns with respect to the proposed rights
as set out in the Digital Agenda paper.

5.2.1.1The proposed transmission right

In 1994, the Copyright Convergence Group report (1994) recommended the
introduction of a broadly based technology-neutral transmission right to replace the
diffusion right and encompass an expanded broadcast right. A fundamental
problem of the transmission right was identified as follows:
the essence of a broad transmission right is the power of the copyright owner to
licence remote access to a digitised work or subject matter via some electronic
means . . . A copyright owner would thus be in a position to interdict the taking
of ideas and facts, not simply the mode of expression . . . The fine balance
inherent in having technology-specific rights under copyright law would be
threatened, and the copyright owner's ‘monopoly’ extended. (van Caenegem
1995, pp. 338–340)
Many activities conducted by universities would fall within the scope of this right.
For example, the transmission or making available of copyright material by LANs
(local area networks) and WANs (wide area networks) would in many cases
constitute an exercise of the transmission or making available to the public right
(see Australian Vice-Chancellors’ Committee Submission 3.3).
With respect to the transmission right, the Australian Vice-Chancellors’ Committee
noted that ‘careful consideration will need to be given to the wording of any
amendment to Part VA to ensure that universities will have access under statutory
licence to audio-visual material that has been transmitted on the Internet, and will
be able to make such material available to students on the campus intranet. In this
context, the meaning of ‘copy’, ‘licensed copy’ and ‘preview copy’ may need to be
redefined to ensure that the use of digital technology to distribute such material
across campus, including multi-campus delivery, will not be more costly to the
university (in terms of copyright royalties) than making one audio-visual tape
(Australian Vice-Chancellors’ Committee Submission 3.5, p. 2).

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Libraries conduct a variety of activities which could potentially fall within the scope
of the transmission right. These activities include the faxing or transmitting by
electronic mail of documents for purposes of inter-library loan under ss 49 and 50,
in particular to remote users, and possibly inter-library loan of electronic materials.
Without appropriate exceptions to the new right, these activities would be
unjustifiably curtailed, which would lead to unreasonable and unjustifiable
restrictions on access to information (Australian Council of Library and
Information Services Submission 3.1, p. 3).
Sir Anthony Mason expressed concern about the proposed new right when he
stated:
a transmission for which a fee is payable to the maker of the transmission, that
is, the person who is responsible for determining the content of the transmission,
is expressed to be a transmission to the public. There will be many circumstances
in which the library is the person responsible for determining the content of the
transmission and it will ordinarily charge a fee. But the fee charged by a non-
profit library is simply a recompense for its service in making and delivering the
copy; the fee contains no component for the information itself. Why should the
making of non-commercial transmission, eg for research or study, for such a fee,
amount to an infringement of copyright? Yet that may be what the exposure
draft proposes. (Mason 1997a, p. 50)
Australian Council of Library and Information Services suggests that it must be
expressly stated in any amendment that supply by transmission under s 49(2) and
s 50(2) be an exception to the broad based technology-neutral transmission right. In
response, Screenrights claims:
that libraries ought not to be permitted under copyright law to communicate
works to the public as an exception to any new right. If such an exception were
to be made, libraries would become in effect state subsidised publishers of
copyright material and would occupy the very market in which copyright owners
in a digital environment will seek to make normal exploitation of their works.
(Screenrights Submission 3.10, pp. 3–4)
There is concern that if a new right of transmission be enacted without reasonable
limitations on and exceptions to those rights, the windfall to rightsholders would
far outweigh any overall benefit to society and thus the justification for copyright
protection would be lost (Australian Council of Library and Information Services
Submission 3.2, pp. 6–7).
With respect to the new rights, universities argue that in creating new copyright
subject matter or new categories of exclusive rights, care must be taken to avoid
users having to pay additional licence fees if they are not getting any additional
benefits. Even where additional uses might be delivering additional benefits in
terms of education, the Australian Vice-Chancellors’ Committee argues that it does
not necessarily follow that copyright owners are losing sales of books or other
works for which they must be compensated at the same rate as for multiple copies
of a written text or at all (Australian Vice-Chancellors’ Committee Submission 5.1,
p. 5).

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5.2.1.2The proposed right of making available

The second right that was proposed in the Digital Agenda paper is the right of
making available. The right of making available would be exercised when copyright
material was made available to the public in such a way that it could be accessed at
a time and a place chosen by members of the public. This right is designed to cover
interactive on-demand services.
Libraries are concerned that the right of making available would be infringed where
a library makes digital copyright material available to be accessed by library users—
i.e. if those users are classified as members of ‘the public’. If this is the case, then
libraries would not be able to make any digital copyright material available. As a
result, the browsing and fair dealing exceptions will be ineffective as libraries will
not be able to make any digital copyright materials publicly available for reading or
viewing in the first place. Libraries argue an appropriate exception must apply
where the making available of copyright material is by a library or information
service to library users where the transaction is not a commercial one (Australian
Council of Library and Information Services Submission 3.2, p. 3).

5.2.1.3The right of communication to the public?

If, as has been suggested, the two rights are conflated into one broad right of
communication to the public, this may mean that many of the concerns expressed
by universities and libraries will no longer be relevant. The potential impact of the
new communication to the public right will need to be re-visited once the
Government is in a position to offer more guidance on the proposed legislative
changes.
One issue that will need to be considered is the way in which ‘to the public’ is
defined. There has been some uncertainty as to what is meant by ‘to the public’;
however, APRA v Telstra (1995, 131 ALR 141) provides guidance. At first instance,
Gummow J held that the playing of recorded music to a telephone caller placed in a
queue was not a communication to the public as it was a communication made in
the setting of a private telephone call. On appeal, the Full Court of the Federal
Court took a different view, concluding that ‘public’ was to be read in the light of
the copyright owner’s public (the audience of the copyright owner) and that,
accordingly, the privacy of the telephone call was not the determining factor.
There is concern that reliance on case law for a definition of ‘to the public’ may
lead to widespread uncertainty in the digital environment. After APRA v Telstra, it is
suggested that the legislature should provide a clear definition of what is meant by
‘to the public’. It has also been said that there is a need for certain exceptions—e.g.
library users should not be defined as the public (Australian Council of Library and
Information Services Submission 3.2, p. 4).

5.2.1.4Retransmission
The Digital Agenda paper makes no proposals in relation to the cable
retransmission of free-to-air broadcasts or the removal of the ceilings on the
amounts payable for the broadcasting of sound recordings as these issues are
currently being considered separately by the Government (Attorney-General’s
Department & Department of Communications and the Arts 1997, p. 33).
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However, in its recent guidelines to the Digital Agenda reforms, the Federal
Government has commented that the broadcasters’ current rebroadcast rights,
which are limited to wireless rebroadcasts, will be extended to cable and online
transmissions of the broadcast (subject to the retransmission arrangements under
the Broadcasting Services Act 1992). It will also be an offence to deal commercially in
decoders designed to unscramble encrypted pay television signals (Minister for
Communications, the Information Economy and the Arts 1998). A statutory
licence scheme will be introduced to enable pay-TV operators to retransmit free-to-
air broadcasts without infringing copyright in the underlying television programs,
provided equitable remuneration is paid to a collecting society for distribution to
the relevant copyright owners.135

5.2.2 The proposed exceptions

5.2.2.1Introduction
One of the most important issues with respect to the new rights is the scope of the
exceptions.136 Exceptions play a crucial role is maintaining and achieving a balance
between rights over information and ensuring access and dissemination of that
information. There are a number of exceptions proposed to the new copyright
owners’ rights that are relevant to universities and their libraries.
Universities have strongly argued that the recent international copyright reforms
‘should not have the effect of decreasing access to information and decreasing the
ability to use information for the purposes of study, teaching and research. The
subject and scope of the exceptions provisions is an issue of major concern to the
universities’ (Australian Vice-Chancellors’ Committee Submission 3.3).
Libraries have warned that ‘without the essential balance between the interests and
rights of copyright owners and those of users of copyright material, the limited
monopoly that society grants to copyright owners becomes a total monopoly over

135
The Government has also noted that, under the Copyright Act, record companies
currently have a statutory licence for equitable remuneration for the wireless free-to-air
broadcast of their sound recordings. Free-to-air wireless broadcasters cannot be asked to
pay more than 1 per cent of their gross income to record producers for broadcasting sound
recordings (Minister for Communications, the Information Economy and the Arts 1998).
136
The Agreed Statement adopted by consensus at the 1996 WIPO Diplomatic Conference
confirms that Article 10, dealing with exceptions and limitations, is intended to: ‘permit
Contracting Parties to carry forward and appropriately extend into the digital environment
limitations and exceptions in their national laws which have been considered acceptable
under the Berne Convention [and] to permit Contracting Parties to devise new exceptions
and limitations that are appropriate in the digital network environment.’ These provisions
clearly state that current exceptions and limitations may be extended into the digital domain
and that new exceptions may be created. Despite this, Copyright Agency Limited has argued
that ‘even in the analogue environment the advancements in reprographic technology and
the increasing reliance on it to obtain access to works means that the scope and the
application of these provisions is too broad’ (Copyright Agency Limited Submission 3.6,
p. 6).
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the control of information use’ (Australian Council of Library and Information

Services Submission 3.1, p. 1). They argue that
it must be recognised that there is no intention displayed in the new WIPO
treaties to dilute long held rights of access enjoyed by users of copyright material
and if anything, the opposite can be said to be true. Any new copyright protection
measures must be designed to protect the commercial interests of copyright owners
to the extent that they have been protected in past copyright regimes, with
reasonable limitations on that protection, designed to ensure a public benefit.
While, new rights and enforcement measures may be necessary due to uncertainty
in the online environment, what has been traditionally accepted as being in the
public domain must remain untouched. (Australian Council of Library and
Information Services Submission 3.1, p. 1).

5.2.2.2Exception for temporary and incidental copies (caching)

With the increasing use of digital copying, concern has been raised that copyright
owners are considering the possible licensing of the internal process of storing by
defining it as a copy. As Samuelson questions ‘[b]y this logic, holding a mirror up to
a book would be an infringement because the book’s image could be perceived
there for more than a transitory duration, however long one has the patience to
hold the mirror’ (Samuelson 1994, as quoted in Power 1997, p. 450). Universities
believe that a change in technology should not result in the levying of a copyright
charge where previously none applied (Australian Vice-Chancellors’ Committee
Submission 3.4).
At the 1996 WIPO Diplomatic Conference, it was suggested that the reproduction
right applied in the digital environment so that storage of a protected work in a
digital form in an electronic medium constituted a reproduction within the meaning
of Article 9 of the Berne Convention. However, this statement was not adopted
unanimously or by consensus.
The Australian Vice-Chancellors’ Committee strongly advocates that temporary or
incidental copies be excluded from the scope of the reproduction right. They argue
that to extend the protection to cover temporary and incidental reproductions
would tilt the copyright protection too far in favour of copyright owners
(Australian Vice-Chancellors’ Committee Submission 3.3). The Australian Vice-
Chancellors’ Committee supports the view that accessing and displaying works and
other materials stored in a computer memory is analogous to reading a section of
conventional printed work. On this basis, it is difficult to justify giving a copyright
owner the right to control access to material in this way. If a copy is made, then it is
likely that the fair dealing provisions apply (unless multiple copies are made which
would be covered under the licence) (Australian Vice-Chancellors’ Committee
Submission 1.1).
Australian Council of Library and Information Services137 argues that the creation
of an exception for temporary or incidental copies would conform with the three-

137
‘The rights to browse or read, view, listen to or hear material has always been one that
users of copyright material have held . . . Should these rights be suddenly bestowed on the
copyright owners to control, the fundamental precept of balance underlying copyright
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step test138 contained in Article 10 of the WIPO Copyright Treaty and Article 9(2)
of the Berne Convention (Australian Council of Library and Information Services
Submission 3.2, p. 5). The agreed statement provides that
it is understood that the provisions of Article 10 permit contracting parties to
carry forward and appropriately extend into the digital environment limitations
and exceptions in their national laws which have been considered acceptable
under the Berne Convention. Similarly these provisions should be understood to
permit Contracting Parties to devise new exceptions and limitations that are
appropriate in the digital network environment . . . It is also understood that
Article 10(2) neither reduces nor extends the scope of applicability of the
limitations and exceptions permitted by the Berne Convention.
As one commentator has said:
making [caching] an infringement of copyright would cause a sub-optimal
imbalance towards creator interests. Moreover, the economic costs to universities
would be enormous. The University of New South Wales estimates the cost at
$2.8 million per year if fees were payable for these activities, which would be
27 per cent of the current total expenditure on information for patrons
($7.64 million).139
As another commentator has noted:
Ultimately the question of whether a temporary copying into random access
memory for such a purpose is a reproduction constituting an infringement is one
of interpretation of Article 9 of the Berne Convention and for implementation by
national law. If the copying is temporary and simply for a purpose, ie browsing,
which has been traditionally recognised as a non-infringing use, there is no strong
reason for holding that it is inconsistent with Article 9 of the Berne Convention.
In the context of digital technology, it is the purpose of the copying and
consequential use that should be all important. (Mason 1997, p. 640)
In a response to the concerns raised by many parties, the Federal Government has
said that it proposes to include an exception to the reproduction right for
temporary, intermediate or incidental copies created as a by-product of electronic
transmission.
Users will not be liable for temporary reproductions made during the course of
transmitting material or viewing it on screen subject to safeguards for the rights of
copyright owners as required by international obligations. Copyright owners will
be able to enforce their rights against the person who either transmitted the
material or made it available for viewing. (Minister for Communications, the
Information Economy and the Arts 1998)

regulation would be irreparably and overwhelmingly Australian Council of Library and

Information Services Submission 3.1, p. 5).
138
The three-step test only allows exceptions: (1) in certain cases; (2) that do not conflict
with a normal exploitation of a work; and (3) do not unreasonably prejudice the legitimate
interests of the rights holders.
139
Which is 48.5 per cent of the entire library budget, as per Power, 1997, p. 451.
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5.2.2.3Exception for browsing

There was some concern expressed that viewing material on screen would involve
an exercise of the reproduction right. The Australian Vice-Chancellors’ Committee
has noted with concern the statement that ‘because technology now exists to
monitor all uses made in the electronic environment, it is now appropriate to allow
copyright owners to charge for those uses, even where these uses have not
traditionally amounted to infringement of copyright’ (Copyright Law Review
Committee 1996, p. 22). It is CAL’s view that the copyright owner should control
any access of copyright material for the purpose of browsing that material
(Copyright Agency Limited Submission 3.6, p. 10). The Australian Copyright
Council and Screenrights agree that any browsing of a work without the copyright
owner’s authorisation should infringe the reproduction rights where reproductions
cause the work to be perceptible (Screenrights Submission 3.10, p. 3).
The Australian Vice-Chancellors’ Committee supports the view that the
Government ought to exempt browsing as it is equivalent of a visit to the hard
copy library to search amongst the shelves (Australian Vice-Chancellors’
Committee Submission 3.3).
The Federal Government in its Digital Agenda paper has indicated its intention to
ensure that the incidental copy created in the course of browsing would not infringe
the reproduction right.140

5.2.2.4Exceptions for fair dealing

The defence of fair dealing is basic to scholarly activity and is relied upon to ensure
the sharing, extension, and development of ideas (Australian Vice-Chancellors’
Committee Submission 6.2). It is pleasing to many that the current Commonwealth
Government appears firm in its resolve to adapt the current fair dealing provisions
to the use of copyright material in a digital form.141 It is felt that:
the preservation and continuation of these balanced rights in an electronic
environment as well as in traditional formats are essential to the free flow of
information and to the development of an information infrastructure that serves
the public interest. It follows that the benefits of the new technologies should flow
to the public as well as to copyright proprietors. As more information becomes
available only in electronic formats, the public’s legitimate right to use copyright
materials must be protected. (International Federation of Library Associations
and Institutions 1995)

140
The Green Paper in the US agrees that ‘it is critical that researchers, students and other
members of the public have on-line equivalent to their current opportunities off-line to
browse through copyrighted works in their school and public libraries’ (Lehman 1995,
p. 133).
141
‘We also recognise the need for fair dealing provisions analogous to those in force for
traditional media. The Coalition will extend the fair dealing principle to the new media,
subject to the rights of content providers to a fair economic return on their works.‘ (Australia
Online’ Policy statement 1996, p. 14)
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There is no doubt that the Australian Vice-Chancellors’ Committee wants the fair
dealing provisions to be carried over to the online environment to ensure that the
goals of the academy are achieved (Australian Vice-Chancellors’ Committee
Submission 3.3).
There is a genuine fear that in the absence of a fair dealing doctrine, publishers will
be ‘sorely tempted to “overcharge” for access to and copying of their works’. Bloch
and Carla have queried whether the new publisher charges and digital media will
enable libraries to save money overall, as the following suggests:
Let us assume that library savings do not offset publisher increases when contract
replaces copyright regulation of library acquisition and use of digital works. A
need may nonetheless exist to impose a fair use exception or other means of price
control. If so, the law regulating book sellers will have come full circle from the
1710 English Statute of Anne, the pre-cursor to our copyright law. While that
statute was the first copyright act, it was not limited to granting authors exclusive
literary property rights. Knowing that copyright-vested authors would assign their
rights to printers and booksellers (antecedents of modern publishers), and
suspicious of the booksellers, the English Parliament included a mechanism for
review and reduction of book prices. Should books be sold ‘at such a Price or
Rate as shall be Conceived by any Person or Persons to be High and
Unreasonable,’ that person could complain to a variety of authors who were
empowered to summon the publisher ‘to Examine and Enquire of the reason of
the Dearness and Inhaucement of the Price or Value of such Book or Books’.
(Bloch et al 1993, p. 65)
Copyright Agency Limited opposes a general expansion to digital uses of the
exceptions to copyright protection currently contained in the Copyright Act. It argues
that the exceptions which applied in the era of analogue technologies cannot be
carried across and applied in the digital era (Copyright Agency Limited
Submission 3.6, p. 3). Copyright Agency Limited sees the ‘current exceptions to the
rights of copyright owners, such as fair dealing and library copying, as statutory
licences for which the Government has waived the requirement for payment.
CAL’s proposal is to include a mechanism for setting a payment for such uses, by
utilising the Copyright Tribunal. In setting a rate, the Tribunal can weigh the public
interest consideration. The fee for certain copying may attract zero rating from the
Tribunal, while other payments may be an increase of the current arrangements.
Such a provision would allow flexibility in the approach to the particular uses for
which copyright owners may be remunerated as users’ attitudes and practices
develop (Copyright Agency Limited Submission 3.6, p. 8).
The Australian Publishers’ Association believes that the fair dealing provisions in
the Copyright Act are outdated and should not survive into the digital future. In
particular, they suggest that there are two reasons why the concept of fair dealing is
no longer valid in the new digital paradigm (Australian Publishers’ Association
Submission 4.5, p. 3).
First, traditional copying under these provisions always was seen to be
‘secondary’ use of the material. The publisher’s primary business, upon which the
whole economics of the business rested, was not in danger . . . In the digital
world, the secondary/primary distinction collapses, because the whole economics
of the business is built on the number of users or transactions, regardless of who
or where they are or for what purpose they are transacting. The second reason
why it is suggested that the concept of fair use is inappropriate is because the very
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technology that enable transmission to the user enables monitoring of that use for
payment purposes. Publishers and RRO’s have the administrative capability to
collect and distribute remuneration for what were formerly ‘private uses’.
(Australian Publishers’ Association Submission 4.5, p. 6)142
It is important to remember that most authors rely upon access and use of other
works to produce their own, as Landes and Posner have noted:
the less extensive copyright protection is, the more an author, composer or other
creator can borrow from previous works without infringing copyright and the
lower, therefore the costs of creating a new work . . . of copyright protection
effectively prevents all authorised copying from a copyright work, the effect would
be to raise the cost of creating new works . . . and thus, paradoxically, perhaps
lower the number of works created. (Landes & Posner 1989, p. 332)

5.2.2.5‘Reasonable portion’
In the new digital world the quantitative guidelines are increasingly becoming
obsolete. It has been said that, as the digital works do not take the form of a page,
that a new measure will have to be developed. The Australian Vice-Chancellors’
Committee has suggested amendment of the quantities guidelines to reflect a new
measure. Australian Council of Library and Information Services agrees with
copyright owners that perhaps the ‘reasonable portion’ as it applies to print works
may not be reasonable when applied to digital works where the unit of sale is not
‘the book’ or the ‘periodical publication’ (Australian Council of Library and
Information Services Submission 3.2, p. 6). If this is accepted, some new measure
will have to be adopted.
The Federal Government has recently stated that the quantum test will only apply
to electronic material where there is a hard copy printed version. It has also decided
that the application of the reasonable portion test to fair dealings with copyright
material in digital format will be subject to further review, including consideration
of the CLRC Report on simplification of the Copyright Act 1968 (Minister for
Communications, the Information Economy and the Arts 1998).143
Transmission or making available of fixed performances and sound recordings in
educational contexts.
An exemption is advocated for the transmission or making available for educational
purposes, similar to that which currently exists in s 28 of the Copyright Act
(Australian Vice-Chancellors’ Committee Submission 3.3).

142
See also the discussion of the fair dealing provisions at Section 4.3.3. However, a recent
article suggests that the ‘internet is no threat to the print industry. New media such as the
internet will not hurt growth in the paper industry for at least 10 years, but it will encourage
emphasis on different areas of production . . . ‘ (Keen 1997, p. 3).
143
The Copyright Law Review Committee has made a number of recommendations in
relation to the quantitative test. They begin with a recommendation that the CLRC’s analysis
of the quantitative test be taken into account by the Federal Government in the next stage of
their consideration of the Digital Agenda legislative reforms (Copyright Law Review
Committee 1998b, Recommendation 2.05 & para 6.66). See Section 4.3.3 for further
discussion of the CLRC’s recommendations in relation to the quantitative test.
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5.2.2.6Exceptions for libraries

The Digital Agenda paper proposes that exceptions be introduced for libraries
similar to the library provisions under the current Copyright Act.
The Australian Vice-Chancellors’ Committee supports the introduction of new
exceptions which would exempt certain copying by libraries and archives
(Australian Vice-Chancellors’ Committee Submission 3.3). The making of copies, in
the course of browsing or by an electronic transmission process, forms part of the
patterns of study and research behaviours. The Australian Vice-Chancellors’
Committee suggests that exemptions are warranted in cases where scholarly activity
may be impaired (Australian Vice-Chancellors’ Committee Submission 3.3).
Australian Council of Library and Information Services argues that ‘copies’ that
pose no threat to copyright owners should not give rise to infringement under the
Copyright Act. On this basis, they argue, for example, that intermediate, ephemeral or
incidental copies144 should be excluded from the definition of reproduction or copy
(Australian Council for Library and Information Services Submission 2.1, p. 5).
Copyright Agency Limited argues that since the introduction of the present library
provisions there have been significant changes to the way libraries operate, to the
technology which is available and to the way materials protected by copyright are
used. Physical distance from hard copy works no longer provides a basis for which
to argue access under an exception. Material now may be copied, stored and
transmitted instantaneously in digital form across any distance without loss of
quality (Copyright Agency Limited Submission 3.6, p. 13).
The Federal Government has recently confirmed that ‘libraries, archives, galleries
and museums (cultural institutions) will be able to use material in their collections
for preservation and internal management purposes without obtaining permission
(this would include digitising the material and making it available on an intranet for
staff use only) but subject to safeguards for owners’ rights. The safeguards would
not mandate the destruction of the original work’ (Minister for Communications,
the Information Economy and the Arts 1998). It has also commented:
that the provisions which allow cultural institutions to supply copyright material
for specific purposes (for example, in response to a research or study request) will
be extended to allow electronic copying and transmission of that material,
provided the relevant officer is satisfied that another copy of the material is not
available within a reasonable time at an ordinary commercial price (however if
the material supplied is less than 10% of the hard copy published edition of the
work or the electronic version of that edition, the officer will not have to make
any inquiries about commercial availability). (Minister for Communications, the
Information Economy and the Arts 1998)

144
ACLIS defines ephemeral or incidental copies to include ‘any economically insignificant
copies, not directly accessible to the user, created in the process of calling up a work on
screen or transmitting a work across a network’ (Australian Council for Library and
Information Services Submission 2.1, p. 5).
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5.2.3 Liability of carriers, carriage service providers

(including Internet service providers) and content service
providers
One of the central questions in the provision of materials in an online environment
is who is liable for any potential copyright infringement which may occur.145 The
Digital Agenda paper proposes that the maker of a transmission ought to be the
person who is responsible for the content. A carrier would not be liable for the
exercise of the transmission right to the extent that they only provide the
infrastructure for the telecommunications network (Attorney-General’s
Department & Department of Communications and the Arts 1997, p. 30). The
issue of liability is an important one for universities as more and more universities
go online and become carriers.
In recognition of the fact that in certain situations only a limited level of control
can be exercised over the potential for copyright infringement, the Australian
Council of Library and Information Services supports the introduction of a
provision similar to that found in s 39A Copyright Act. Section 39A provides, where
a person makes an infringing copy of a work on a machine which has been installed
in a library or archive, that the library or archive will not be liable for authorising
that infringement, where there is an appropriate notice detailing what may be
copied in close vicinity. This section recognises that whilst the provision of certain
facilities or services may in some instances lead to an infringement of copyright, it is
unreasonable to apportion liability to a party who has limited control over the
actions of others in regard to the equipment provided. The principle embodied in
s 39A concerning warning notices over photocopiers in libraries is a crucial element
of the law of ‘authorisation’. It is ACLIS’ view that the position of Internet service
providers is similar, in this regard, to that of libraries (Australian Council of Library
and Information Services Submission 3.2, p. 7).
In response, the Copyright Agency Limited argues that Internet service providers
are often the only identifiable body that copyright owners are able to approach
regarding copyright infringements online. Copyright Agency Limited submits that,
as well as being liable for authorising infringements, they must also be liable for
direct infringement (Copyright Agency Limited Submission 3.6, p. 15).
The Federal Government has recently confirmed that ‘telecommunications carriers
and carriage service providers (including Internet service providers) will not be
directly liable for copyright infringements occurring in relation to material accessed
via their networks, if they are not responsible for determining the content of that
material.’146 The Government proposes to

145
An agreed statement was adopted at the Diplomatic conference to the effect that the
‘mere provision of physical facilities for enabling or making a communication’ does not
amount to the exercise of the communication to the public right. With the exception of this
statement, the WIPO Treaty does not define the nature or extent of liability for the exercise of
the new communication to the public.
146
‘Typically the person responsible for determining the content of online material would be
the web site proprietor (ie, not the ISP or carrier). This overcomes the problem in the APRA v
Telstra case where Telstra (as a carrier) was held liable for the playing of music-on-hold by
its subscribers to their clients, even though Telstra exercised no control in determining the
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limit and clarify the situations in which ISPs could be liable to copyright owners
for authorising the infringing acts of others (eg their subscribers). The key factors
determining authorisation liability will be codified, namely, the ability to prevent
the infringement, the relationship with the infringer and the reasonable steps
taken to avoid infringement. As ISPs have little or no control over most
copyright material not directly hosted on their servers (ie material to which they
merely provide Internet connectivity) and no relationship with a person who
places material on such sites, their liability will be correspondingly limited. ISPs
do, however, have greater control over websites on their own servers. To address
this issue the Government has decided that ISPs will not be liable for copyright
infringement by reason only of the fact that they provide the physical facilities (ie
the server) by which that material is communicated to the public. This further
exception is in line with the wording of international treaties. (Minister for
Communications, the Information Economy and the Arts 1998)

5.2.4 New enforcement measures

Another important change that is proposed is the introduction of new enforcement
measures. These enforcement provisions would outlaw the unauthorised
circumvention of technological copyright protection measures (such as computer
program locks and encryption) and the abuse of rights management information
electronically attached to copyright material. The proposed scheme builds on the
recommendations in the CCG report (1994), the proposals in the Copyright
Amendment Act and most importantly the new international standards (Attorney-
General’s Department & Department of Communications and the Arts 1997,
p. 35).
The major concern with the anti-circumvention provisions is that they, in effect,
allow copyright owners to ‘lock up’ their works. This is despite the fact that under
the fair dealing provisions of the Copyright Act, the public are able to use a
reasonable portion of the works for specified purposes.
Should such enforcement procedures be implemented, Australian Council of
Library and Information Services suggests that care must be taken to ensure that
they do not prevent the manufacture and use of technologies necessary to ensure
the ability of users to rely, where appropriate, on fair dealing, and other user rights.
They argue that it is essential that this take place to prevent legislative
encroachment on legitimate activities which are undertaken (Australian Council of
Library and Information Services Submission 3.2, p 8).
The Copyright Agency Limited has stated it does
not believe that owners of copyright material who use technological copyright
protection measures should be compelled to give access to, or be denied the power
to prevent access by users of copyright material other than where to do so under
competition law, for example under s 46 of the trade Practices Act, or under the
provisions of a statutory licence for the purposes deemed to be in the public
interest. (Copyright Agency Limited Submission 3.6, p. 16)

content of the music played’ (Minister for Communications, the Information Economy and
the Arts 1998).
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To assist copyright owners to ‘help themselves’ to enforce their rights in the online
environment, the Federal Government has decided to implement civil and criminal
remedies against the commercial dealing in devices designed to circumvent
copyright protection measures.
To avoid the problem identified by users that such a ban on commercial dealings
could prevent the production and importation of devices with legitimate purposes
(eg personal computers), the ban would relate to devices which have only a limited
commercially significant purpose other than an illegal circumvention of encrypted
copyright material. Criminal penalties will also apply to tampering with
information attached to copyright material including details of the copyright
owner and the conditions of use (Rights Management Information). (Minister for
Communications, the Information Economy and the Arts 1998)

5.3 Moral rights147

Moral rights afford protection to creators of literary, dramatic, musical and artistic
works and films. It is likely that moral rights will be introduced into Australia in the
near future.148 The rights are distinct from copyright and are personal non-
economic rights.
The moral rights that are most likely to be introduced are the right to attribution of
authorship, the right not to have authorship falsely attributed and the right of
integrity of authorship of the work. The right to attribution of authorship ensures
that the author, producer or director of a film has a right to be identified as the
author of that film. The right against false attribution gives the author a right to
prevent another from affixing or inserting another’s name to a work or a
reproduction of a work in a way which falsely implies that the person is the author
of the work, and to prevent commercial dealings with the work carrying a false

147
For a discussion of the proposed moral rights regime, see Department of
Communications and the Arts & Department of Justice 1994.
148
The Copyright Amendment Bill 1997 contained provisions for the introduction of moral
rights. One of the most controversial provisions of these proposals was the up-front waiver
provision which enabled parties to waive their moral rights. On introduction of the Copyright
Bill, the justification for comprehensive moral rights protection became obscured by a
debate over the up-front waiver for contracted works and films. The Senate Legal and
Constitutional Legislation Committee released its report in October 1997 (where the
majority recommended the extension of waiver at the time of commissioning a work or film)
and lengthy discussions were had over several months with the film and television industry to
find an acceptable compromise on the waiver issue. However, such a compromise was not
possible by the time the Copyright Amendment Bill was debated, accordingly, the
Government withdrew the moral rights provisions in Schedule 1 from the Copyright
Amendment Bill. The Government intends to continue to consult to develop a consensus on
a workable provision on waiver and then resubmit the moral rights regime as a stand-alone
Bill later in 1998. See also Attorney-General’s Department 1998.
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attribution.149 The right to integrity is a right to object to distortions, mutilations or

other modifications that prejudicially affect the creator’s honour or reputation.
These rights, if enacted, are likely to have an important impact upon the university
sector.150 For example, with the increased sale and consequential repackaging of
materials, academics may find themselves removed from the point of delivery and
thus having little control over the audience to whom the materials are directed. In
such situations, the right of integrity may become important to academics who
believe the circulation in such circumstances to be prejudicial to their professional
reputation (Wells 1994, p. 24). Similarly, the right to prevent distortion may prove
important in relation to the digitisation of academics’ work due to the ease of
manipulation. 151
The impact that moral rights are likely to have upon university practices depend on
whether or not the moral rights are able to be waived. This controversial issue may
prove to be important with respect to course materials used in teaching. As the
current proposed moral rights provisions have been returned for consultation with
industry groups, it is difficult to predict the form the new moral rights provisions
may take when they are finally enacted. However, this issue must be re-visited to
assess the impact of moral rights upon university practices.

5.4 Article 2B Uniform Commercial Code (US)

Contract law plays an important role in regulating the way in which information is
accessed. It appears that the importance of copyright, in particular the fair dealing
provisions, may be affected by the form of contracts currently being adopted by
information owners. There has already been a move in the United States to regulate

149
This right would replace ss 190–192 of the Copyright Act that deal with false attribution
of authorship.
150
‘The need for moral rights legislation to extend to tertiary institutions is underlined by its
capacity to protect an individual’s ‘honour and reputation’, especially in a professional
context. For academic staff, and to a lesser extent, general staff, ‘honour and reputation’ is
largely defined by peers. For example, in the case of academic staff, peers make
recommendations regarding an individual’s access to major research funding and teaching
grants based on assessments of their professional standing. This peer group is located within
a disciplinary field of study and thus goes beyond the person’s place of employment. The
skills of tertiary staff as teachers, researchers and authors represent their ‘intellectual
capital’, and their professional development and advancement rests with their reputations as
creators of intellectual property. If an institution exploits such intellectual property without
acknowledging them as authors, their reputation suffers.’ (Wells1994, pp. 23–24)
151
‘The context in which material is used also poses problems for an academic’s
professional reputation. The preparation of teaching materials is usually informed by the
sensitivity to context: what the originator considers appropriate for one group of students
may be quite inappropriate for students of a different prior learning environments and
different cultural, religious or ethnic backgrounds. Therefore the delivery of material to
groups other than those for whom it was prepared may prejudice the creator’s reputation as
a teacher or researcher among their students and peers.’ (Wells 1994, p. 24)
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mass market information contracts in the form of the proposed Article 2B of the
Uniform Commercial Code.152
Article 2B deals with transactions in information. In simple terms it legitimises
‘click-wrap’ or ‘shrink-wrap’ agreements.153 There is usually little or no opportunity
to negotiate the terms of access in such agreements. As such, consumers are often
left with no option but to contract on the copyright owners’ terms or not at all.
Some such licence contracts require users to agree not to do certain things, such as
copy information accessed on the site. This obviously raises concerns as to whether
the proposed contractual rights (Article 2B Universal Copyright Convention)
override the rights given under US Copyright law (e.g. fair use provisions).154 The
ongoing debate over the proposed Article 2B should be monitored closely by
universities and their libraries, as it has been suggested that the Article 2B
provisions may act as the model for regulating information contracts around the
world.

5.5 Legal protection for databases155

In recent years the question of the legal status of factual compilations has become
an important issue in intellectual property law in Australia. This has been prompted
by changes overseas,156 such as the passing of the EU Database Directive157 and also

152
Much has been published in the United States on the proposed Article 2B Uniform
Commercial Code, e.g. see Warlick 1997, p. 158.
153
These are licence agreements which are commonly used online, where to gain access to
a site, you must agree to certain terms. The terms are usually provided to you on your
screen and to proceed all you have to do is click on the ‘yes’ button on the screen. The
agreement is formed at that point.
154
For example, see Professor Charles McManis’s 1997 motion which grew out of a
concern that mass-market licences could be manipulated ‘by various segments of the
copyright industry to opt out of those parts of the federal copyright bargain that are not to
their liking’, http://www.softwareindustry.org/issues/guide/docs/mcman.html, 19 Aug.,
referred to in Warlick 1997, p. 165.
155
For a useful discussion of the proposed database legislation, see Thomas 1997.
156
As we saw earlier, three treaties were considered at the Diplomatic Conference held in
Geneva in 1996. While the Copyright Treaty and the Performances and Phonograms Treaty
were signed, a third treaty, the WIPO Basic proposal for Database Protection (WIPO Doc
CRNR/DC/6. The full name is the Basic Proposal for the Substantive Provisions of the Treaty
on Intellectual Property in respect of Databases to be considered by the Diplomatic
Conference 30 August 1996) which was deferred, sets out a new form of intellectual
property protection for databases. ‘Database’ is broadly defined to cover ‘a collection of
independant works, data or other materials arranged in a systematic or methodical way and
capable of being individually accessed by electronic or other means’ (Basic Proposal article
2 (i)). Some suggest that while the Treaty seeks to address the limits of copyright to protect
factual information, the main purpose is to protect and encourage ‘substantial investments’
in databases.
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the proposed Database Investment and Intellectual Property Antipiracy Act currently under
consideration in the United States.158
Whilst the Australian Government has not yet decided how it will respond to these
proposed changes, the consultation process has already begun.159 The introduction
of database protection has ramifications for the educational and library sector.
Simply put, it may mean that factual information that has otherwise been in the
public domain, as it lacked sufficient originality for copyright protection, will now
be protected and any uses of such factual information will have to be paid for.
Given the potentially important and wide ranging impact of the proposed sui generis
protection for databases, the university sector should pay particular attention to any
developments that take place and ensure that the views and interests of the
educational sector are put forward for consideration.

157
In 1996, in an attempt to harmonise European Law on the protection of factual
databases, the European Union passed a Database Directive which came into operation on
the 1 January 1998 (Council Directive 96/9, 11 March 1995). The European Database
Directive provides a period of protection for databases of 15 years.
158
In the United States, HR 2652, the Database Investment and Intellectual Property
Antipiracy Act appears to be a direct response to the European Directive. The preferred
period of protection in the US legislation is 25 years.
159
Databases Treaty Consultation co-hosted by the Attorney-General’s Department and the
Academy of Science, Friday 18 April 1997 Canberra. There are plans for further
consultation to take place in 1999.
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Appendix 1
People/organisations contacted
I was greatly assisted by the input of data and views from the following individuals
and organisations:
Bernice Andersen Australian Vice-Chancellors’ Committee
Libby Baulch Australian Copyright Council
Lionel Bentley King’s College, London
Susan Bridge & Staff Screenrights
Kylie Brown Department of Communications and the Arts
Tom Cochrane Queensland University of Technology
Simon Cordina Copyright Law Review Committee, Secretariat
Dr Kaye Daniels Department of Communications and the Arts
James Dickinson Screenrights
Dr Peter Drahos Australian National University
Michael Fraser Copyright Agency Limited
Trevor Gersden University of Newcastle
Michael Hall & Staff Baker MacKenzie Solicitors, Sydney
Annabelle Herd Australian Council of Library and Information Services
Mike Lean Queensland University of Technology
Jill McKeough University of New South Wales
Anne Monotti University of Melbourne
Caroline Morgan Copyright Agency Limited
Peter Nicholson DEETYA
Dr Brad Sherman Griffith University
Robyn Streat DEETYA
Jeremy Stuparich DEETYA
Dr Julian Thomas Australian Key Centre for Cultural and Media Policy Studies,
Griffith University
Peter Treyde Copyright Law Review Committee Secretariat
Racher Vance The Australian National University
Dr Julie Wells National Tertiary Education Union
Jamie Wodestski Minters Solicitors, Melbourne

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 Copyright in Universities

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Case List
APRA v Telstra (1995) 131 ALR 141.
Audio-Visual Collecting Society Ltd v New South Wales Department of School Education and
Others (1997) 37 IPR 495.
Beloff v Pressdam (1973) 1 All ER 241.
Copyright Agency Ltd v Department of Education of New South Wales and Others (1985) 59
ALR 172.
Con-Stan Industries of Australia Ltd v Norwich Winterhur (Australia) Ltd (1986) 160 CLR
226.
Copyright Agency Ltd and Others v Victoria University of Technology (1995) 128 ALR 482.
De Garis v Neville Jeffress Pidler Pty Ltd (1990) 95 ALR 625.
Haines v CAL [1982] 64 FLR 184.
Hawkes and Sons (London) Ltd v Paramount Film Service Ltd [1934] 1 Ch 593.
Hubbard v Vosper [1972] 2 QB 84.
Noah v Shuba [1991] FSR 15.
Re Application by Copyright Agency Limited; Copyright Agency Ltd v The University of
Adelaide & Others (1997) 38 IPR 633.
Stephenson Jordan v McDonald & Evans (1953) 69 RPC 18.
University of New South Wales v Moorhouse (1975) 133 CLR 1.
Walt Disney Productions v H John Edwards Publishing Co Pty Ltd (1954) 71 WN (NSW)
150.

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Submissions

1 Computer Software Protection

Submission 1.1
Australian Vice Chancellors’ Committee 1993, Submission to CLRC in response to
the draft report on computer software protection, August.

2 Copying by libraries and archives

Submission 2.1
Australian Council of Library and Information Services 1997, Submission to the
CLRC on copying by libraries and archives under the Copyright Act 1968.
Submission 2.2
Audio-Visual Copyright Society Limited 1997, Submission to the CLRC on copying
by libraries and archives under the Copyright Act 1968 and educational institutions
and copying under the Copyright Act, 18 June.
Submission 2.3
Australian Publishers Association 1997, Submissions prepared on CLRC’s issues
paper on copying by libraries and archives under the Copyright Act 1968, 16 June.
Submission 2.4
Catholic Education Centre 1997, Submission to CLRC on issues papers: copying by
libraries and archives under Copyright Act 1968, copying for people with disabilities
under Copyright Act 1968 and legal deposits of copyright material under the Copyright
Act 1968 (27 May).
Submission 2.5
Council of Australian University Librarians 1997, Submission to the CLRC on
copying by libraries and archives under the Copyright Act 1968.
Submission 2.6
Library and Information Service of Western Australia 1997, Submission to CLRC
on issues papers: copying by libraries and archives under Copyright Act 1968,
copying for people with disabilities under Copyright Act 1968 and legal deposits of
copyright material under the Copyright Act 1968, 27 May.
Submission 2.7
NSW Department of Training and Education Co-ordination 1997, Submission to
the CLRC issues paper on copying by libraries and archives under the Copyright Act
1968.
Submission 2.8
State Library of NSW 1997, Submission to CLRC on issues papers, copying by
libraries and archives under Copyright Act 1968, 3 July.
Submission 2.9
State Library of Victoria 1997, Submission to CLRC on issues papers, copying by
libraries and archives under Copyright Act 1968, 11 June.

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Submission 2.10
TAFE Queensland (Vocational Education and Training Directorate) 1997,
Submission to CLRC on issues papers, copying by libraries and archives under
Copyright Act 1968, 16 May.

3 Copyright reform and the digital agenda

Submission 3.1
Australian Council of Library and Information Services 1997, Draft response to
Copyright reform and the digital agenda: proposed transmission right, rights of
making available and enforcement measures, AGPS, Canberra.
Submission 3.2
Australian Council of Library and Information Services, Submission to the
Copyright reform and digital agenda paper.
Submission 3.3
Australian Vice-Chancellors’ Committee 1997, Draft response to Copyright reform
and the digital agenda, proposed transmission right, rights of making available and
enforcement measures, AGPS, Canberra.
Submission 3.4
Australian Vice-Chancellors’ Committee, Submission on Copyright reform and the
digital agenda.
Submission 3.5
Australian Vice-Chancellors’ Committee 1997, Supplementary response to the
discussion paper, Copyright reform and the digital agenda.
Submission 3.6
Copyright Agency Limited, Submission in response to discussion paper, Copyright
reform and the digital agenda.
Submission 3.8
Law Council of Australia 1997, Submissions prepared on the copyright reform and
the digital reform agenda discussion paper, 23 September.
Submission 3.9
National Tertiary Education Industry Union submission to the CLRC discussion
paper, Copyright reform: a consideration of rationales and objectives.
Submission 3.10
Screenrights (formerly the Audio-Visual Copyright Society) 1997, Submission to
Copyright reform and the digital agenda, 24 September.

4 Educational institutions and copying

Submission 4.1
Australasian Mechanical Copyright Owners Society 1997, Submission to the
CLRC’s issues papers on educational institutions and copying under the Copyright
Act 1968, 4 June.

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 Copyright in Universities

Submission 4.2
Australian Book Publishers’ Association, Original submission (No. 38) to the
CLRC, referred to in the CLRC issues paper on educational institutions and
copying under the Copyright Act 1968.
Submission 4.3
Australian Copyright Council, Submission to CLRC on educational and library
copying under the Copyright Act 1968.
Submission 4.4
Australian Copyright Council 1997, Submissions to the CLRC on educational
institutions and copying under the Copyright Act 1968, copying by libraries and
archives under the Copyright Act 1968, legal deposit of copyright material under the
Copyright Act 1968, copying for people with disabilities under the Copyright Act 1968,
13 June.
Submission 4.5
Australian Publishers Association 1997, Submission to the CLRC on educational
institutions and library copying.
Submission 4.6
Australian Vice-Chancellors’ Committee 1997, Submission to CLRC on educational
institutions and copying under the Copyright Act 1968.
Submission 4.7
Copyright Agency Limited, Submission in response to the CLRC issues paper on
Educational institutions and copying under the Copyright Act 1968.
Submission 4.8
Department of Education (Queensland) 1997, Submission to the CLRC on issues
papers: educational institutions and copying under the Copyright Act 1968, copying
by libraries and archives under Copyright Act 1968, copying for people with
disabilities under Copyright Act 1968, 27 May.
Submission 4.9
Department of Education, Community and Cultural Development (Tasmania)
1997, Submission to CLRC on issues papers: educational institutions and copying
under the Copyright Act 1968, 28 May.
Submission 4.10
Law Council of Australia 1997, Submissions prepared on CLRC’s issues paper on
legal deposits, educational institutions and copying under the Copyright Act 1968;
and copying by libraries and archives under the Copyright Act 1968, 11 July.
Submission 4.11
National Council of Independant Schools’ Association 1997, Submission to CLRC
on Educational institutions and copying under the Copyright Act 1968 and
Simplification of the fair dealing provisions of the Copyright Act 1968.
Submission 4.12
State Library of NSW 1997, Submission to the CLRC issues papers, Educational
institutions and copying under the Copyright Act 1968, 30 May.
Submission 4.13
TAFE Queensland (Vocational Education and Training Directorate) 1997,
Submission to the CLRC issues papers, Educational institutions and copying under
the Copyright Act 1968, 13 May.
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 Copyright in Universities

Submission 4.14
State Library of New South Wales ‘Submission to the CLRC on Educational
institutions and copying under the Copyright Act 1968 (Cwlth).
Submission 4.15
University of Melbourne 1997, Submission to the CLRC issues papers, Educational
institutions and copying under the Copyright Act 1968, 30 May.

5 Review and simplify the Copyright Act

Submission 5.1
Australian Vice-Chancellors’ Committee, Submission to CLRC reference to review
and simplify the Copyright Act 1968.

6 Review of Higher Education Financing and Policy

Submission 6.1
Australian Vice-Chancellors’ Committee, Submission to the Review of Higher
Education Financing and Policy, Shaping Australia’s future.

7 Simplification of the fair dealing provisions

Submission 7.1
Australian Copyright Council, Submission to CLRC on Simplification of the fair
dealing provisions of the Copyright Act 1968.
Submission 7.2
Australian Vice-Chancellors’ Committee 1997, Submission on CLRC issues paper,
Simplification of the fair dealing provisions under the Copyright Act 1968.
Submission 7.3
Australian Council of Library and Information Services, Submission to CLRC
Simplification of the fair dealing provisions of the Copyright Act 1968, Issues paper,.
Submission 7.4
Copyright Agency Limited 1997, Submission to CLRC on Simplification of the fair
dealing provisions of the Copyright Act 1968.
Submission 7.5
National Council of Independant Schools Associations 1997, Submission to the
CLRC on simplification and review reference, 11 June.
Submission 7.6
VI$COPY (Visual Arts Copyright Collecting Agency) 1997, Submission to the
CLRC simplification of the fair dealing provisions of the Copyright Act 1968,
17 June.

133