[Oz-teachers] Copyright Audit

DALGLIESH, Andrew Andrew.DALGLIESH at deta.qld.gov.au
Mon Dec 5 09:31:01 EST 2011

Hi Barbara, Tom and all

Tom, you're right that an author can label their work "not-for-remuneration" and this indeed is a simple solution for publicly-minded owners who want to license their materials in this way. Indeed, the need to provide an alternative to the traditional copyright regime was one of the main drivers behind the development of a number of instant licensing schemes including NEALS, AEShareNet (including Free for Education) and Creative Commons.

However, many copyright owners don't apply any sort of mark to their work and the current regime by default assumes these owners expect remuneration and it is this assumption the Vice-Chancellors questioned. They lost the argument in 2005, but my question is...given the exponential growth of web 2.0 materials, should we now revisit the idea?

Apart from a handful of online content sharing services like Flickr that include a Creative-Commons licensing tool as part of their workflow, very little user-generated content on the web comes with a label one way or the other. CAL's position has basically been that we should assume this means the owner expects to be paid for copying of their work.

The Vice-Chancellors question this assumption and argue that the very fat the owner has placed the material on the web without any form of fee-seeking mechanism (e.g. paywall, shrink-wrap licence, click-through terms of use etc) is sufficient evidence to conclude they don't expect payment and that therefore, CAL should not be required to seek payment for the copying of these materials by the education sector.

The difference between what the agency now collects from education institutions ($80m in 2009) and what it actually pays directly to rightsholders ($9.1m in 2009) has to at least make you wonder if the VC's had a point.

AVCC made some other arguments for an education exception that are worth considering. They contended for example that:
* commercial businesses and private citizens copy freely accessible online materials every day - the only difference being that education is required to pay which they argued is discriminatory and inequitable;
* a vast amount of freely accessible online material is likely to be "orphaned work" because CAL will often be unable to identify the copyright owner;
* education institutions suffer major administrative overheads in monitoring and recording copying of materials whose owners don't expect and in many cases won't receive payment because of CAL's threshold rules, and that this cost on the education sector is unwarranted;
* since an education exception only covers educational use, and only materials that have been placed online with no effort by the owner to demand payment, it is highly unlikely to undermine copyright owner's interests or their motivation to share their materials online

To that you could argue that the absence of an education exception vastly increases the complexity of the job of managing collections and distributions under the statutory education licence and that if the onus was on the copyright owner to assert their expectation of payment that would greatly simplify CAL's job and reduce the need for them to maintain such an extensive and expensive organisational structure to deal with it.

Barbara - I do remember the issue of linking. According to SmartCopying, linking is not generally copying but there is some concern that deep linking could lead to claims of copyright infringement or abuse of moral rights. However there has been no litigation in Australia and linking is unlikely to be an issue for schools or school systems.

In terms of the TLF materials, I understand the avoidance of linking to external sites in learning objects was mainly to prevent linkrot - when the target sites changed URL or content. Although the scale of the TLF initiative and its very high public profile perhaps made the risks associated with linking greater than they would be for schools or education departments.

A major component of NDLRN (what was TLF) is MEX - the Metadata Exchange. MEX is a back-end system that feeds Scootle, the Learning Place, TALE, FUSE and other jurisdiction repositories with metadata records of resources residing on their owners' websites. MEX is preferred where the owner wants to maintain hosting of their materials so they can be seen in context and usage data can be collected. MEX records have a TLF ID that starts with M. Other digital resources (the ones that start with R or L) have been harvested and are delivered with the content and metadata as a package. In both cases, however, ESA (who manages NDLRN) enters into agreements with the owners to ensure the content is kept updated, is free from CAL remuneration and in the case of MEX materials, is not moved or changed without notice.



From: oz-teachers-bounces at rite.ed.qut.edu.au [oz-teachers-bounces at rite.ed.qut.edu.au] on behalf of Barbara Braxton [barbara.288 at bigpond.com]
Sent: Saturday, 3 December 2011 8:26 AM
To: 'Professional community for teachers'
Subject: Re: [Oz-teachers] Copyright Audit

Tom says, "There is already a simple solution: if the copyright owner doesn't
want payment from educational use, they can say that on their material and CAL
will not collect payments for that use."

The issue is that the copyright owner is most likely the publisher, not the
author, particularly for print-based resources. And they are unlikely to waive
their right to royalties/ payment for educational use when the majority of
titles in question in schools are published precisely for that.

Having written a lot of material for The Learning Federation I know that there
was a huge issue with linking to sites in terms of copyright - a ruling was made
and perhaps Andrew will recall it.

What seems common sense, fair and just, such as the case of Crown Copyright and
employers owning stuff you produce, isn't necessarily the legal situation.


Barbara Braxton
Teacher Librarian
barbara.288 at bigpond.com
Together, we learn from each other

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