How Australian Universities should management copyright in the context of Web 2.0. Presentation for a Society of University Lawyers Conference at the University of Queensland, Brisbane, October 2009.

1. Aaron Magner
Legal Counsel UNSW

2. The 70’s
The photocopier
Moorehouse v UNSW 1974
Part VB license for education
purposes (1980)

3. The 80’s
The video recorder
The ‘Betamax’ case 1984
Part VA license off air broadcast
(1989)

4. The 90’s
The Internet & World Wide Web
A&M Records v Napster 2001
Copyright Amendment
(Digital Agenda) Act 2000

5. 2001
 Web 2.0, P2P, Facebook, Twitter
 Wireless, Bluetooth, iPhone, Kindle
 Future technological developments?
2005

6.  Australian internet use 80%
 18-25 year olds 96%
 University Students 100%
 YouTube 2nd largest search engine in the world
 70% of 18-34 years olds watched TV online.
By 2010
Gen Y will outnumber
baby bombers

7.  UNSW YouTube channel
 1.5million hits since Oct 07.
 UNSW TV
 UNSW iTunesU
 Content can be restricted.
 180,000 podcast downloads since July 2008.
 12,000 podcasts a month

8. Safe
Harbour?
Illegal
Content?
Peer to Peer
File Sharing?
Copyright
Infringement?
Infringement
Notifications?
Take
Down
Notices?
Who
Owns What?

9.  Copyright material incorporated into media not
covered under the licence.
 Licensed for lectures or the library but not
podcasts and YouTube.
 Interpreting fair dealing.
 Ambivalence toward Copyright law.
 Misconceptions about Copyright law.

10.  Internet is Public Domain, can use anything.
 Using material for teaching is Fair Dealing.
 If you’re not charging for it, it’s alright.
 We’re using the material for the public good.
 They won’t sue a University.
 I won’t be personally liable.

12.  Copying small portion may still be a copyright
infringement.
 ‘Quality’ of the work taken, not just ‘Quantity’.
 ‘Works’ on the internet are copyright by
their owner.
 Material licensed for education use in lectures
may not be licensed for the Internet
(YouTube and iTunesU).

13. The law allows use without specific permission:
 For research or scholarship
 To criticize or comment
 To write news articles
 To practice or parody
 Statutory licences - Part VA and VB
 Universities pay large amounts to CAL &
Screenrights and APRA.

14. Fair dealing in a copyright work is not an
infringement of copyright.
Allows use of a work in a reasonable manner:
 Brevity
 Amount used
 Spontaneity
 When and how often used.

16.  If deliberate commercial scale infringement &
substantial prejudicial effect on © owner - Criminal
liability - 5 years jail and $300K fine.
 Section 132AC (1) Copyright Act.
 Universities are not Carriage Service Providers
(except UQ) but should act as if covered by ‘Safe
Harbour’ regime.
 Personal Liability: 2 years jail and $13K fine.

17. To minimise risk of Copyright infringement liability:
 Strong access policies
 Clear terms of use
 Take down notice procedures
 Permission templates
 Citations and attributions for all material
 Update Copyright policies and procedures
 Enforce copyright policy
 Communication and training students and staff.

18. Exercising one of the owner’s rights?
Copy or a derivative work?
Distribute or publish a copy?
Publicly perform or distribute the work?
Purpose for using the creative work?
Is use Fair Dealing and therefore exempt?
Checklist for uploading content

19.  ‘Fair Dealing’ in AUS not as wide as ‘Fair Use’ in USA
 Section 40: Fair Dealing for research and study
 How much and how often are you using?
 Does amount exceed reasonable expectation?
 Using the work more than once?
 Using the ‘heart’ or ‘essence’ of a work?
 ‘Quality’ not ‘Quantity’.

21.  Ongoing improvements in technology.
 Universal internet adoption (developed world).
 The National Broadband Network.
 New disruptive technologies (Skype, YouTube etc)
 New business models.
 Copyright law has not kept up.

22.  Copyright law reform. Industry options:
 Levy the medium, not the content.
 Industry supported collection society.
 Encourage industry to build and administer a P2P
network for content sharing.
 Universities collect a low fee from students to access
all content free – Warner Bros ‘Choruss’ model.

23. What should Universities do?
 Prepare for a copyright infringement claim but
compliance shouldn’t impose disproportionate cost.
 Workable approaches to Copyright complaints and
disciplining offenders.
 Support open source access to research outcomes and
processes.
 Different approaches among Universities.
 How does your University manage Copyright risk?

24. Share/ remix/ spread… and attribute.
http://www.slideshare.net/AaronMagner
licence elements:
Attribution – attribute the author
Noncommercial – no commercial use
ShareAlike – changes allowed, but only if you put the new work under the same licence

25. Aaron Magner
Legal Counsel
The Legal Office - Chancellery Building
UNSW SYDNEY NSW 2052
email: a.magner@unsw.edu.au
Elsewhere on the web
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Attribution: Images from Istockphoto.com and flickr.com