Reforming copyright law essential for innovation

Australia’s restrictive copyright laws need sweeping changes to allow universities to compete with the rest of the world in online education. In a submission to the Australian Law Reform Commission, the higher education lobby group Universities Australia says the Copyright Act is holding back innovation.

The commission announced its inquiry into copyright law and the digital economy last year and released an issues paper calling for responses, which has so far attracted more than 300 submissions from individuals and organisations.

Universities Australia, or UA, a national organisation representing 39 universities, says it is concerned that current ‘fair dealing’ provisions in the Copyright Act do not support the use of copyrighted material in the delivery of Massive Open Online Courses, known as MOOCs.

In its submission, the group says that despite universities paying more than A$200 million (US$211 million) a year to commercial publishers for access to academic journals, and A$30 million for content delivery under statutory licences, none of this content can currently be used to deliver online courses.

Only being allowed to offer course material developed within each university puts Australian universities behind their US competitors, which are able to include third-party content under fair use provisions of the US Copyright Act.

As a result, says Derek Whitehead, the perception that a MOOC is just a cut-down version of an existing course is only likely to be magnified in Australia, and the existing exceptions in the Australian Copyright Act do little to help.

Whitehead is chair of the Australian Digital Alliance and a university copyright officer at Swinburne University of Technology in Melbourne.

In a contribution to an article published in the academic newsletter The Conversation, he said the list of specific exceptions in Australian copyright legislation was more than 10 pages long, with specific exceptions for specific cases – yet it was nowhere near as flexible as the US system.

“There is a broad group loosely in favour of introducing a broad fair use exception into Australian copyright law. The Australian Digital Alliance, the education industry and the big internet companies are all loosely in favour of a fair use exception, as are others...

“Reform of the existing exceptions regime should be assessed in light not only of possible impacts on rights holders, but also, and equally importantly, in light of possible benefits to society generally in a digital economy.”

The UA submission says reform must also be guided by the principle that society reaps benefits from knowledge and learning that in many cases outweigh limitations on the rights of owners to earn income from educational uses:

“This principle has long been recognised in copyright law. It is reflected in the special status given to education in international copyright treaties. The special role of education – in particular its central role of knowledge creation and dissemination – must be reflected fully in any copyright regime.

“In a digital environment, almost every use of technology will involve making copies. The existing copyright exceptions have proved to be insufficiently flexible to distinguish between those uses that are at the core of copyright, and those uses that are not.

“As a result, innovative and useful technologies, and new ways of using content in socially beneficial ways, automatically infringe copyright unless their use falls within one of the existing narrow, purposed-based exceptions.”

The UA says inflexible exceptions are affecting the ability of Australian universities to create and disseminate knowledge, with copyright laws operating as a roadblock, while researchers and innovators are being prevented from making full use of technology their colleagues in regimes with more flexible copyright exceptions take for granted.

Australian universities have much less flexibility than their US counterparts when determining what kinds of content will be included in courses offered via MOOC delivery platforms.

“Copyright law is also standing in the way of Australian students taking full advantage of technology. Today it is text and data mining that is being blocked by copyright. Any new technologies that emerge will also be impeded by Australia's outdated and inflexible copyright regime.

“The best and brightest research students will be drawn to an environment where innovation can flourish, and in the digital age, copyright increasingly plays a vital part in that.”