Section Two Copyright exceptions for schools

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HA N D B O O K F O R S C H O O L L I B R A R I E S

SECTION4 RESOURCESERVICES:COPYRIGHT

Updated and republished online 2008

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In NSW government schools

Section One – Copyright

What is copyright? Duration of copyright

Section Two – Copyright exceptions for schools

1. Free for education material

a. NSW DET created content b. The Le@rning Federation c. Creative Commons material d. NEALS material

e. Other free material

2. Free for education uses

a. Exam Provision (section 200) b. Copying by hand (section 200)

c. Performance and Communication in Class (section 28) d. Flexible Dealing Provision (section 200AB) & Format Shifting

3. Direct licences and sample permission letters

4. Licences for all Government schools

a. Copying and Communication of Text and Artistic Works

b. Part VB Statutory Licence with Copyright Agency Limited (CAL) including labelling requirements

c. Copying Television, Cable and Radio Broadcast

d. Part VA Statutory Licence with Screenrights including labelling requirements

e. Performing Music in Public

f. Voluntary Licence with the Australasian Performing Right Association (APRA)

g. Recording Music & Schools Performance of Music

h. Voluntary Licence with Australasian Mechanical Copyright Owners Society (AMCOS)/Australasian Performing Right

Association (APRA)/Australian Record Industry Association (ARIA) i. Photocopying Originally Purchased ‘Print’ Music

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33 5. Fair dealing

a. Reporting the news b. Criticism or review c. Research or study d. Parody or satire

*Smart Copying Tips poster for schools

Section Three – Creating copyright material at school

Copyright ownership

Material created by staff

Material created by two parties

Material created by volunteers & researchers Students as creators

Seeking permission to use student works Seeking permission to use third party works Labelling material

Moral rights

Culturally and commercially sensitive material Breach of Copyright

Section Four – Further information and contacts

Section Five – Copyright Appendices (separate documents)

a. Creative Common Resources for Schools

b. Performance and Communication in the classroom c. Flexible Dealing

d. Format Shifting

e. Template Letter to Request Student Permission to use material f. Template Letter for Permission to use Student’s work

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Section One – Copyright

What is copyright?

Copyright is the legal means by which authors and other creators control the use of their work. In most cases copyright means that you have the right to grant or deny permission to others to reproduce your material. Copyright law only applies to something that is in a material form. Copyright does not protect ideas, concepts, styles or techniques. For example, copyright will not protect an idea for a film or book, but it will protect a script for the film or even a storyboard for the film.

The Copyright Act divides the materials protected into two categories: works and other subject matter. This categorisation is important as differences exist as to the length and scope of copyright protection.

Works

Artistic

works

Literary

works

Musical

works

Dramatic

works

paintings sculptures graphics cartoons etchings lithographs photography drawings plans maps diagrams charts buildings models of buildings moulds and casts for sculptures novels text books newspaper articles magazine articles journals poems song lyrics timetables technical manuals instruction manuals computer software computer games anthologies directories databases melodies song music pop songs advertising jingles film score plays screenplays mime choreography

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35 Other subject matter

Films

Sound

recordings

Broadcasts

Published

editions

cinematographic films video recordings DVDs television programs advertisements music videos interactive games and interactive films vinyl music or voice recorded on vinyl CD DVD audio cassette tapes MP3 files radio television podcasts of free to air TV broadcasts typesetting (the layout and look of a publication)

Copyright owners have the right to: 1. reproduce the work in a material form 2. publish the work

3. perform the work in public

4. communicate the work to the public 5. make an adaptation of the work.

Copyright will generally be infringed if one of the exclusive rights of the copyright owner (such as reproducing the work) is exercised without the permission of the owner, or without copying the material using a special licence or exclusion contained in the Copyright Act such as those for schools.

In Australia, copyright is an automatic right for creators, meaning that you do not have to register for ownership or publish your work to ensure that it is protected.

Duration of Copyright

In 2005, the period of copyright protection for most works increased. This period of protection will apply to all works that were still in copyright on 1 January 2005. To work out if a work was in copyright on 1 January 2005, you will need to apply the pre-1 January 2005 copyright periods.

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36 Material created after 1 January 2005

Types of copyright material

Extended term

Literary, musical, dramatic and artistic work

excluding photographs Lifetime of author plus 70 years

Photographs Lifetime of author plus 70 years

Unpublished literary

(other than computer programs) dramatic works

70 years after calendar year end of first publication

Unpublished engravings 70 years after calendar year end of first _publication

Pseudonyms and anonymous names 70 years after calendar year end of first _publication

Sound recording and films Published Editions

70 years after calendar year end of first broadcast, exhibition or publication

25 years from end of year work first published

Material created before 1 January 2005

(a) Works

Types of copyright material

Current term

Literary Works Lifetime of author plus 50 years

Artistic works (except photographs) Lifetime of author plus 50 years

Dramatic works Lifetime of author plus 50 years

Musical works Lifetime of author plus 50 years

(b) Works – Exceptions

Types of copyright material Current term

Photographs 50 years from end of year photograph taken

Unpublished photographs 50 years from end of year work first published

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(c) Subject matter other than works

Types of copyright material Current term

Films 50 years from end of year film first released

Sound recordings 50 years from end of year recording first released

Published editions _{25 years from end of year work first published}

Section Two – Copyright exceptions for

schools

There are a number of situations when schools are entitled to reproduce material without obtaining prior approval from the copyright owner. These range from licences negotiated and paid for centrally by the Department, to free for education uses and free for education materials.

Please note that most of these exceptions relate to teachers or staff using copyright material and may not necessarily extend to students. Likewise, some exceptions relate only to students and cannot be relied upon by teachers or staff.

The cost of the centrally paid licences for schools has dramatically increased over the past five years and in 2007 cost the Department over $15 million. To help reduce these costs, schools are encouraged to first review any free for education resources available or free education uses which may be relied upon before copying material under centrally paid licence schemes such as the CAL print licence.

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The following options (Table 1) are available when copying or communicating material at school:

Free for Education material

¾ NSW DET created content ¾ The Le@rning Federation ¾ Creative Commons material ¾ NEALS material

¾ Other free material

Free for education uses

¾ Exam Provisions (section 200) ¾ Copying by Hand (section 200)

¾ Performance and Communication in class (section 28) ¾ Flexible Dealing (section 200AB)

Direct licences

Licences for all government schools

¾ Licence to use text and artistic works

¾ Licence to copy and communicate television and radio broadcasts

¾ Licence to perform music ¾ Licence to record music

¾ Licence to photocopy print music

Fair Dealing

¾ Reporting the news ¾ Criticism or review ¾ Research or study ¾ Parody or satire

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1. Free for

Education

Material

2. Free

For

Education

3. Direct

Licences

4. Licences

for all

Schools

5. Fair

Dealing

d. Flexible Dealing

Provisions (s.200AB)

Including Format

Shifting

c. Performance &

Communication

in class (s.28)

c

a. Licence to use Text &

Artistic Works (CAL)

b. Licence to Copy & Communicate TV and

Radio Broadcasts (Screenrights)

e. Licence to

Photocopy Print

Music (AMCOS)

d. Licence to Record

Music

(AMCOS / APRA / ARIA)

c. Licence to Perform

Music (APRA)

a. Reporting the

News

b. Criticism or

Review

c. Research

or Study

a. Exam Provisions

(s.200)

b. Copying by

Hand (s.200)

a. Teaching and

Learning Exchange

(TaLe)

d. Parody or

Satire

b. The Le@rning

Federation resources

d. NEALS licensed

material

e. Other free

material

c. Creative Commons

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40 Free for Education material

There are a range of websites which provide copyright free material for use by educational institutions. Schools can access music, photographs, film clips, cartoons, maps, text and more from these sites without concern for the usual copyright limits or payment of royalties.

a. NSW DET created content

All of the content which is created by the Department is automatically included under the National Education Access Licence for Schools (NEALS). This means that if a teacher from a NSW government school accesses any of the content created by the Department they are not limited to the usual restrictions but may freely copy and communicate the material within their school. However, schools must comply with usual copying limits when using any DET content marked as Excluded from NEALS. The NEALS licence is further outlined in section 1d.

Curriculum K-12 Directorate creates a wide range of relevant and practical resources that help in the implementation of syllabuses and provides useful advice on a range of other curriculum–related issues. Most of the material on the Curriculum site is included under NEALS. To access the Curriculum Support website go to:

<http://www.curriculumsupport.education.nsw.gov.au>

TaLe is the Department’s education portal set up to provide teachers, parents and the community access to a range of quality teaching resources. All of the material on the TaLe site is relevant to learning in NSW schools and is free from the standard copyright restrictions and payment of royalties. To access TaLe go to: <www.tale.edu.au>

b. The Le@rning Federation

The TaLe site includes a range of digital resources and learning objects produced by The Le@rning Federation (TLF). The licence for government schools to use TLF material has already been obtained by the Department so there is no further copyright royalty or other charge applied when schools use this material.

Likewise, there is no limit on the amount of material you can copy and communicate under the TLF licences however you are not permitted to communicate the material outside of your school or outside a secure, access controlled site (such as a school intranet).

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Each TLF item includes a Conditions of use statement which outlines what schools are allowed to do with each item. Schools are entitled to download, copy, print and

communicate TLF materials. This includes copying the material to CD-ROM or DVD for use within your school or by students at home, but it must not be made available to other parties.

For more information on using material from The Le@rning Federation see the information sheet Smart Copying website at <www.smartcopying.edu.au>

c. Creative Commons material

Creative Commons is a copyright licensing system which recognises that some creators do not want to exercise all of the rights afforded to them under the Copyright Act. Schools can use many of the resources on the site for educational purposes, free of charge including music, film clips and photographs. Often the only requirement for using this material is acknowledgement of the copyright owner, but sometimes even this right is waived. Another benefit in using this material is that schools will generally not need to worry about applying restrictions such as 10 per cent or 1 Chapter of a work.

A detailed information sheet for schools wishing to use Creative Commons material is available on the Smart Copying website <www.smartcopying.edu.au> (or see Copyright Appendix A on page 66).

The Creative Commons site can be accessed at <www.creativecommons.org>

d. NEALS material

The National Education Access Licence for Schools (NEALS) is a new copyright licence for schools in Australia. The licence was introduced by the school sector to help reduce annual copyright fees incurred by schools.

Under normal Copyright law, education departments are often liable to pay royalties when schools copy or communicate material such as information from websites,

administration documents and pages from text books. Before the introduction of NEALS, this included all material created by the Department for its own schools.

The NEALS licence allows staff in schools to copy any NEALS material (marked with the NEALS logo ) without incurring the usual copyright fees. Unlike general copyright material, there are no restrictions on the volume of copying or communication staff in schools are entitled to make with NEALS material, provided it is used for educational purposes.

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NEALS is not intended to allow education departments or schools to copy each other’s material free of charge for commercial purposes, nor does it create any additional access rights to Department created material marked with the NEALS logo. You must normally have access to a NEALS resource for the NEALS licence to be relied upon; the presence of the logo does not automatically entitle a school to freely copy the material.

For example, if your school pays for a subscription to a publication which is marked by the NEALS logo, this would not mean that a neighbouring school would be entitled to make copies of the publication as this material would not be normally available to them unless they purchased their own subscription. However, it would be considered

acceptable for your school to make copies of sections of the publication without concern for the usual copying limits.

The same rule applies to any internal documents which are made available through the Department intranet and marked by the NEALS logo. If these materials are not normally accessible to staff in a non-department school they do not now have permission to copy it.

It is the responsibility of the staff in each school to ensure that NEALS material which is made available to them is not unfairly exploited or released to other schools.

If you require further information the National Education Access Licence for Schools please contact the Copyright Unit on <[email protected]>

e. Other free material

Free for education material is not limited to the sources outlined above. Individual creators are entitled to select the rights attached to their work. These rights are expressed through the use of a copyright statement, usually attached at the front of a publication or on the terms and conditions section of a web page. The easiest way to determine if material is available for educational purposes is to read the copyright statement.

If the copyright statement is very broad and it is unclear whether schools are entitled to copy and communicate the material without relying on centrally paid licences, you should contact the creator or publisher to check.

Many non-commercial creators are willing to share their material with schools for educational purposes provided some basic copyright requirements are met (the work is not modified, work is correctly attributed). The benefit in this approach is that you will often be able to retain a much broader permission to use the material than would

normally be permissible. Be sure to keep copies of the permissions and licences to ensure the material is not counted for payment when your school is surveyed.

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43 Free for Education uses

There are a number of general provisions in the copyright act which outline situations where it is practical for schools to use certain copyright material without relying on a licence scheme or seeking permission from the copyright owner.

a. Exam Provision (s.200)

The Copyright Act (s.200) entitles schools to reproduce or adapt a literary, dramatic, musical or artistic work as part of an exam question without seeking permission from the copyright owner.

The exam provision only extends as far as the actual examination process, so it does not include revision testing or use of past exam papers. Any further use of the examination papers in schools, by students, or teachers, comprises publication outside the context of the examination and therefore requires a licence or permission (either through direct licence, centrally paid licence or if the material is ‘free for education’). For example, the provision does not include placing an exam paper online for student access/revision. Although the provision does not extend to sound recordings or films, it is possible that another exception or licence is available to schools to cover the use of this material in an exam situation, such as the new Flexible Dealing provision outlined below.

b. Copying by Hand (s.200)

The copying by hand exception is possibly the most straight-forward of all of the

exceptions in the Copyright Act. It allows teachers and students to reproduce, translate, arrange or adapt by hand as much as needed of a literary, dramatic or musical work in the course of educational instruction. Examples where this provision might be useful include copying material on to a piece of paper, blackboard, white board or overhead transparency.

The provision does not allow for subsequent copying by any other process (such as photocopying, scanning) so the school must rely on another licence or exception to do so (such as the print licence). Schools should also take care not to rely on this provision when copying material on to an interactive device which allows for copying, such as an interactive white board (IWB).

c. Performance and Communication in Class (S.28)

The Copyright Act (s.28) entitles schools to perform and communicate copyright work in class without seeking permission from the copyright owner or paying copyright royalties. Your use needs to meet a number of conditions before this exception can be relied upon.

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Performance in class:

Teachers and students can read or perform a literary, dramatic or musical work, or play sound recordings and films in class, provided it is done so

in the course of education and is not for profit; and

the audience/class are giving or receiving instruction or are directly connected with the place where instruction is given.

A class may include virtual classes and distance education students. A performance might include playing a sound recording, staging a play or showing a film in class. This would not cover screening a film for entertainment on a rainy day (as this would not be considered in the course of education).

Communication in class:

A communication involves making copyright material available online or electronically transmitting copyright material. Teachers and students are entitled to communicate a range of different works to enable classroom performances and playing of sound recordings and films in class using new technologies. A communication might include making copyright material available on the school intranet or emailing copyright material to students.

Some instances where this exception might be useful:

Using an electronic delivery system to transmit a television program or film from a central DVD player in the library to a monitor in the classroom Reciting a poem to students in a virtual class over Skype

Playing a film through a content management system (such as myclasses, ClickView or Moodle)

Displaying or projecting material to a class using an electronic whiteboard or data projector.

Please refer to the full information sheet entitled Performance and communication of works and audio visual material in class – What am I allowed to Do? on the Smart Copying Website <www.smartcopying.edu.au> (or see Copyright Appendix B on page 72). The information sheet also contains a number of instances where schools could rely on this exception.

d. Flexible Dealing Provisions (s.200AB)

A new exception for schools was introduced in 2006 which allows teachers to use

copyright material for free in very particular and narrow circumstances for the purposes of educational instruction.

This exception is different to others in that it does not specify exactly which copyright uses will and will not be permitted. Instead, it sets out a number of rules which teachers must use to decide whether their situation or use of copyright material will be allowed. The first rule is that you cannot rely on this provision if another exception is available to you first. For example, if you can rely on one of the licences organised for all schools (such as the CAL licence) then you must do so before using this exception.

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45 Is my use covered under the Flexible Dealing Provisions?

No No Yes 2. Is my use non-commercial? 3. Is my use a special case? 4. Does my use conflict with normal exploitation?

- Is my use narrow in a qualitative and quantitative sense?

-Is my use only what I need for my teaching purpose?

Covered by 200AB Yes

Yes

-Can I buy or get a licence for this use? -Is this use a way the copyright owner usually makes money from their work?

-Will I deprive the copyright owner of

significant revenue now or in the near future?

1. Am I using this material for

giving educational instruction?

Am I teaching in a classroom or remotely, preparing to teach, compiling resources for student homework or research or doing something for the purpose of teaching?

5. Would I unreasonably prejudice the copyright owner?

-Am I taking more than I need? -Am I exposing the material to a risk of piracy?

-Am I interfering with the quality of the material?

-If I answer yes to any of these questions, is there something I can do to minimise any prejudice?

Am I, my students or the school making a profit or getting commercial advantage from

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Some examples where this exception might be useful in your school include:

making a captioned version of a film for hearing impaired students when it is not possible to buy a captioned version of the film and you need to show the film in class

converting 8-track or VHS tapes to DVD where it is not possible to buy a DVD of that film and the DVD is needed for teaching purposes

compiling short extracts of audio-visual material for use in class (such as making a DVD of short extracts of several films for an English class) when it is not

possible to buy a similar teaching resource

including short extracts of music in PowerPoint teaching aids

Please refer to the full information sheet entitled The new flexible dealings exception – What am I allowed to do? on the Smart Copying website <www.smartcopying.edu.au> (or see Copyright Appendix C on page 76). The information sheet also contains a number of instances where schools could rely on this exception.

What about Format Shifting?

There has been a lot of media attention recently about a new format shifting exception that was introduced to the Copyright Act in December 2006. Understandably, this has sparked some interest from schools hoping to format shift entire audio visual libraries to DVD format or on to a content management system in MP4 format (such as Clickview). Unfortunately, the new exceptions do not generally entitle schools to do so. This note is to provide you with some preliminary advice about format shifting and what is now permissible following the changes.

What is Format Shifting?

Format Shifting is a term used to describe the process of copying content from one technological format to another. Some examples include making a DVD copy of a VHS tape or transferring a VHS tape to a content management system (such as Clickview) in MP4 format.

Schools can confidently format shift the following types of copyright material Free-to-air television and radio broadcasts

Subscription radio and television broadcasts Podcasts of free-to-air television programs

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Restrictions on format shifting

Schools are generally not permitted to format shift commercial items such as films unless all of the following conditions are first met:

a) The original copy of the material must be lawful. This means that the school bought it, or it is a genuine (non-pirate) copy of the material owned by the school

b) The copy must be made for the purpose of educational instruction (e.g. a teacher needs to use the material in a class or students need it to complete homework)

c) It is not possible to buy the material in the new format (e.g. in DVD or MP4 format) within a reasonable time

d) You do not use the format shifted copy in a way that would unreasonably prejudice the copyright owner (such as putting it on the internet or giving students access to an electronic file they could copy).

e) You do not remove or disable an Access Control Technological Protection Measure to make the format shifted copy.

Please refer to the full information sheet entitled Format shifting and the Copyright Amendment Act 2006 – What am I allowed to do? Smart Copying Website

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48 Direct Licences

A direct licence means obtaining permission to use copyright material straight from the owner. The value in obtaining a direct licence is that you can often acquire a much broader permission than if you were to rely on the central licences for schools (such as the CAL licence for photocopying). Another benefit is that the usual copyright royalties are not charged on licensed materials.

Some instances where it would be appropriate to seek a direct licence from a copyright owner include:

if your school requires a substantial portion of a work or an entire work which is not already permitted by another licence

if the materials appear to be designed for schools or for general educational purposes

if your school expects to continually use the material

material published by another educational institution such as a university or college

Obtaining a licence involves sending a letter to the publisher to request permission for your school to use the material. If you do not hear back from the copyright owner

assume that you do not have permission to use the material. A sample letter is included on page 50 for use by schools.

It is important to keep a register of the licences and permissions your school obtains. This includes online subscriptions and CD-ROMS which include a licence to use the material. Aside from assisting other staff in the school, you will save the resource from attracting copyright royalties for these materials. Keeping a register of licences will also help your school when it comes time to be surveyed.

Permission

from

covered

Works

Who does

the licence

apply to

Expiry Date

Licence kept

Name of publishing house or independent author Title of e-book, CDROM, URL for online material, DVD title How many teachers and students does the licence apply to?

How long can the copyright material be used under this licence?

Where is a copy of the licence stored?

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Correspondent’s title & name Organisation (where applicable) Full address

Dear [insert title and family name]

I am writing on behalf of the [insert name of school] School to request permission to use the work, [name or description of work] for [insert detailed description of intended use/s - or a more general permission might simply read 'to copy and communicate the work'].

If you agree to grant permission to use this work in the manner outlined above, please complete and sign the attached form and return a copy to [insert name or description of school] at the following fax number [insert fax number] or to [insert postage address].

In the event that you are not the rights holder of this work, we would appreciate any information you can provide which will enable us to contact the rights holder.

If you require any additional information regarding this request please contact [name and unit] on [insert phone number] or [insert email address].

Yours sincerely,

Insert Name Title

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Permission for the use of copyright

material for educational purposes

Details of work and rights holder

Name of Work [insert name or description of work] Full Name of Rights

holder [insert title, first name and surname of rights holder] Company /

Organisation [insert name of company/organisation where relevant] Address [insert address, if known]

Telephone Number/s [insert telephone number, if known] Fax Number [insert fax number, if known]

Email address [insert email address, if known]

Please indicate the permission granted by ticking the appropriate box. I confirm that I am the rights holder of the Work, and I grant the following rights without payment for the full term of the Work’s copyright:

I authorise insert name of school to [insert detailed description of intended use/s]

I authorise insert name of school to copy and communicate the Work for the following purposes only:

Please credit me follows:_________________________________________

The information provided on this form is being obtained for the purpose of administering educational programs for students in NSW Department of Education and Training schools. Provision of this information is voluntarily. The information contained on this form is personal and will be stored, used and disclosed in accordance with the requirements of the Privacy and Personal Information Act 1998 (NSW).

Signature:

Date:

I do not authorise the NSW Department of Education and Training to copy or communicate the Work.

I am not the rights holder of the Work. The contact details of the rights holder have been attached

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51 Licences for all government schools

The Department pays for a number of licences with collecting societies which allow schools to use specific types of copyright material for specific purposes. Collecting

societies administer copyright on behalf of copyright owners. There are five main licences which apply to all government schools.

Licence Material covered

a Part VB Statutory Licence with the Copyright Agency Limited (CAL)

Copying and Communication of Text and Artistic works

b Part VA Statutory licence with Screenrights

Copying Television, Cable and Radio Broadcast

c Voluntary Licence with the Australasian Performing Right

Association (APRA) Performing Music in Public

d

Voluntary Licence with Australasian Mechanical Copyright Owners Society (AMCOS)/ Australasian Performing Right Association (APRA)/ Australian Record Industry Association (ARIA)

Recording Music & School Performance of Music

e _{AMCOS Voluntary Licence} Photocopying originally purchased 'Print' Music

The cost of these licences has risen dramatically in recent years, particularly the Part VB CAL licence for copying and communicating text and artistic works. Schools are

encouraged to first review any free-for-education resources (see Section One) available or free education uses (see Section Two) which may be relied upon before copying material under centrally paid licence schemes such as the CAL print licence.

For full details and latest updates on each licence please refer to the National Copyright Guidelines found at <www.smartcopying.edu.au>.

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52 a. Copying and Communication of Text and Artistic Works

Part VB Statutory Licence with the Copyright Agency Limited (CAL)

The CAL licence entitles schools to copy and communicate a reasonable portion of the print form of most literary, dramatic, musical and artistic works for educational purposes. Copying may include photocopying, scanning, printing or audio recording while

communication may include emailing or faxing the material to someone else, placing the material on the school intranet or providing access to the material on a central network. Schools are not limited to the number of copies they can make under the CAL licence as long as it is for educational purposes. However, schools are limited to copying and communicating a reasonable portion of an individual work.

A reasonable portion is generally considered to be

◘ one article in an issue of a periodical (newspaper, magazine, journal) ◘ more than one article in a periodical if that article is on the same

subject

◘ a literary work of no more than 15 pages that is published in an anthology

◘ 10 per cent or one chapter of a print work such as a textbook. An educational purpose may include a reproduction of communication made for teaching purposes, used as part of a course of study or retained for library use as a teaching resource.

There are some circumstances where a whole work can be copied including: an entire literary, dramatic, musical or artistic work that has not been separately published (including unpublished works)

an entire work that is not available within a reasonable time (6 months for text books, 30 days for other material)

an entire published edition where the underlying work is out of copyright. Fortunately, schools are not required to keep details of the materials copied day to day. Rather, a random sample of schools is surveyed each year and required to keep full records for one term. The results of these surveys are combined and weighted to represent the copying of all schools under the licence scheme. It is only important to keep a record of the materials that your school is licensed to use, to ensure the materials are not charged for royalties by CAL.

The CAL licence has a number of different schemes including a scheme for hard copy materials, a scheme for electronic materials, a scheme for assisting students with Print Disabilities and a scheme for schools assisting students with Intellectual Disabilities. When a work is communicated in electronic form the school must take reasonable steps to ensure that the material is made available on a password protected site and that no more than a limited amount is made available at any one time. Schools should also avoid storing material online, particularly for periods over twelve months as the material will be counted for remuneration each year it remains on a computer or digital storage system.

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53 Labelling requirements

There are no requirements to place a notice on the copies made when a hardcopy work is reproduced in hardcopy form (for example, a page from a book is photocopied).

However, when a hardcopy work is converted into electronic form and communicated (emailed, faxed or placed online) each reproduction or communication must include the following notice:

Often when schools purchase access to material as part of an online subscription, CD-ROM package or digital resource library it will be accompanied by a licence to copy and communicate the material. For example, if a school subscribes to Encyclopaedia

Britannica there are no limitations on the amount of material which can be used from the site, nor does this material attract royalty payment.

For full details on the amounts of each type of work that may be reproduced and

communicated under the CAL licence please refer to the National Copyright Guidelines on the Smart Copying website <www.smartcopying.edu.au>.

1b. Copying Television, Cable and Radio Broadcast

Part VA Statutory Licence with Screenrights

The Screenrights broadcast licence permits NSW government schools to copy and communicate television and radio broadcasts in analogue and digital formats. This includes cable, satellite, free to air or subscription based television broadcasts. The licence also entitles schools to copy podcasts and vodcasts which have already been broadcast free-to-air.

Under the Screenrights licence NSW government schools are permitted to copy as much of a television or radio program as is needed, as many times as needed for educational purposes. There are no special requirements on the format in which the copy must be made.

Schools are also entitled to make preview copies of broadcasts and then decide within 14 days whether to use it or wipe/destroy the copy. It is important that if your school is not

COMMONWEALTH OF AUSTRALIA Copyright Regulations 1969

WARNING

This material has been reproduced and communicated to you by or on behalf of the NSW Department of Education and Training

pursuant to Part VB of the Copyright Act 1968 (the Act).

The material in this communication may be subject to copyright under the Act. Any further reproduction or communication of this material by you may be the subject of copyright protection under the Act.

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54

going to use the broadcast copy that the material is deleted rather than kept just in case as this will be counted for payment under the licence.

When storing copies of broadcast material on content management systems such as ClickView it is important that material is not stored online for longer than required, particularly over a 12 months period as this material is counted for payment each year that it appears on the system. Schools are encouraged to review online collections of broadcast material each year and remove any copies of material stored online.

Labelling material copied from television and radio

There are special marking requirements for schools when they make copies of television and radio broadcasts, depending on when the copy was made. There are also specific marking requirements when schools wish to communicate copies of broadcasts.

For copies made after 1 July 1990

Schools are required to label or stamp video or audio copies with the following notice:

For copies made before 1 July 1990

Schools may keep copies of broadcasts made before 1 July 1990 however this permission does not to extend to making further copies and they should be labelled as follows:

Communicating copies

When a school communicates a copied program, each digital copy must be accompanied by the following warning notice:

Other than these labelling requirements, there are no general record keeping obligations unless your school has been selected as a sample institution during the survey period.

Made for the NSW Department of Education & Training under Part VA of the Copyright Act 1968

Date of broadcast: [insert date] Date this copy made: [insert date]

Made for the NSW Department of Education & Training before 1 July 1990 – DO NOT

COPY-COMMONWEALTH OF AUSTRALIA Copyright Regulations 1969

WARNING

This material has been copied and communicated to you by or on behalf of the NSW Department of Education and Training pursuant to Part VA of the Copyright Act 1968 (the Act).

The material in this communication may be subject to copyright under the Act. Any further copying or communication of this material by you may be the subject of copyright protection under the Act.

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55

For full details on the Screenrights TV, cable and Radio licence for schools please refer to the Smart Copying website at <www.smartcopying.edu.au>.

A specific information sheet has been developed for schools when using podcasts and is available on the Smart Copying site under Information sheets.

1c. Performing Music in Public

Voluntary Licence with the Australasian Performing Right Association

(APRA)

The APRA licence authorises NSW government schools 'small performing rights' to publicly perform music and accompanying lyrics in certain circumstances. Under the licence, schools and students may perform musical works at the school or at a function connected with the school's activities.

The APRA licence does not cover Grand Rights (such as a musical play, opera, operetta, musical play, pantomime, ballet), large scale choral works over 20 minutes long,

performances given by professional musicians or interschool music festivals. Schools must obtain permission from the relevant publisher before performing these works. For more information on using grand rights works please contact the NSW Copyright Unit at <[email protected]>.

For full details of the APRA music performance licence please refer to the National Copyright Guidelines at <www.smartcopying.edu.au>.

1d. Recording Music & School Performance of Music

Voluntary Licence with Australasian Mechanical Copyright Owners

Society (AMCOS)/ Australasian Performing Right Association (APRA)/

Australian Record Industry Association (ARIA)

The AMCOS/APRA/ARIA licence allows schools to reproduce musical works and sound recordings for non-commercial, educational and commemorative purposes. The licence entitles schools to record pieces of music, lyrics and sound recordings for use in concerts and other school events. The licence does not cover video recordings of musicals. For the full details of schools public performance of music provisions please refer to the National Copyright Guidelines at <www.smartcopying.edu.au>.

1e. Photocopying originally purchased

print

music

AMCOS Voluntary Licence

The AMCOS licence permits schools to copy printed musical works (sheet music) by or on behalf of schools. Under this licence there are different limits for primary and secondary school copying. APRA/AMCOS have developed a publication entitled A practical guide to the use of Print Music in Australia’to assist anyone using print music. The guide is regularly updated and can be found on the APRA website at <www.apra.com.au> under the music users section and then under publications and guides.

The National Copyright Guidelines on the Smart Copying Website

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56 Fair Dealing

The fair dealing provisions in the Copyright Act allow for a reasonable portion of copyright material to be used for a number of purposes without seeking permission or making payment to the copyright owner. These include using material for:

reporting the news criticism or review research or study parody or satire

When relying on any of the fair dealing provisions it is important to acknowledge the source work, copyright owner and author of the work if different from the copyright owner. For more information on acknowledgement see the notes on Moral rights in Section Three.

a. Reporting the news

Reporting the news in the print, radio or television media is considered a fair dealing including audio-visual material (such as sound recordings, films and broadcasts). The term newspaper, magazines or similar periodical includes e-zines and other online publications as well as school newspapers and magazines.

b. Criticism or review

A student may copy or communicate parts of a literary, dramatic, musical and artistic work for the purpose of criticism and review. A student might rely on this provision when reviewing a book, CD or film for a student newspaper or similar publication. The same exception applies for audio-visual material (sound recordings, films and broadcasts).

c. Research or Study

A student or teacher may rely on this provision to copy and communicate a reasonable portion, and in some cases an entire:

literary, dramatic, musical or artistic work sound or television broadcast

film, video /DVD sound recording multimedia product computer program database

for the purposes of their own research or study. The person undertaking the study and research (i.e. a school student) must be the person doing the copying for it to be considered a fair dealing.

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57

Teachers may not use the research and study fair dealing provision to make multiple copies of material for their students’ research or study. This is covered by other provisions and licence schemes.

A reasonable portion is generally considered to be:

for works that contain at least 10 pages: 10% of the number of pages in the edition or if the work is divided into chapters, a single chapter.

for works that are published in electronic form: 10% of the number of words pages in the edition or if the work is divided into chapters, a single chapter. Teachers and students may copy or communicate more than a reasonable portion of a literary musical or dramatic work or more than one article for the same research if it is fair to do so. You can decide if the copying or communication you intend to do would be fair by considering the following factors:

the purpose and character of the dealing the nature of the work

the possibility of obtaining the work within a reasonable time at an ordinary commercial price

the effect of the dealing upon the potential market for, or value of the work in the case where only the part of the work is copied - the amount and substantiality of the part copied in relation to the whole work

External studentswho are enrolled in an educational institution can rely on the fair dealing provision for research or study provided that the copying is related to an approved course of study or research.

d. Parody or Satire

Teachers and students can use most types of copyright material for the purpose of parody or satire, provided that use is fair. This exception includes extends to any type of copyright material and use including copying, adapting, performing and communicating (i.e. making it available online).

The use under this provision is likely to be considered fair if:

You have, or your student has, only used enough of the source copyright material that is necessary to make the intended parodic or satirical point. For example:

if you want to make a satirical comment about a film director's portrayal of women, it is more likely to be fair if you have only used one relevant scene of the film, not the film in its entirety, to create a piece with subtitles or

voiceover

if a student wants to make a satirical comment about the health issues around underweight models in fashion photography, it may be possible to use part of a fashion photograph, for example of a very skinny model's back, as opposed to an entire magazine article.

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58

In some cases, it will be okay to use the whole of the source material. For example, a student might perform the whole of a popular song in a way that 'sends up' the popular singer. This may cease to be fair, however, if it were sold or widely distributed.

Yours or your students’ use is also more likely to be fair if it is closely linked to a course syllabus.

For more information on the fair dealing provisions please refer to the Smart Copying Site <www.smartcopying.edu.au>.

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59 Smart

Copying tips for schools

9

Add the Curriculum Support, TaLe and Creative Commons websites to the

Favourites folder on all school computers with access to the internet.

9

Audit your video and DVD collection for pirated materials.

9

Link to material rather than uploading material to your school network or internal web.

9

Always check for a pre-licensed or free for education alternatives before copying straight from a website or text book.

9

When making preview copies of radio and television broadcasts be sure to discard any copies which you do not wish to keep before 14 days expire.

9

Obtain a direct licence from the publisher or creator where possible. Be sure to mark the material.

9

Keep a log of any material which contains a licence for your school to copy and communicate the material (many online subscriptions and CD-ROMS include a licence for schools to copy the material once the initial purchase price is paid).

9

Maintain a list of any material which contains a copyright statement permitting copying and communication for educational purposes.

9

Ensure that any NEALS material is not made available to other schools that would not normally have access to the material.

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60 Section Three: Creating copyright material

at school

Copyright ownership

3

The Department Code of Conduct contains a number of standards around copyright ownership of material including material created by staff, jointly developed material and material created by volunteers. These standards are summarised below.

Material created by staff

The Department controls and manages all copyright created by its staff while under the direction and control of the Department. This includes any material which is created by staff in their own time for their employment with the Department.

Staff should not use Departmental copyright material for private purposes unless permission is granted first. The permission should be sought either through the NSW Copyright Unit or through the Directorate/Unit which originally created the copyright material.

If a member of staff prepares material in their own time, using their own resources for a purpose other than their employment and subsequently uses that material in the course of their employment with the Department, the Department does not own copyright.

Material created by two parties

As a general rule the Department discourages staff from entering into joint copyright ownership contracts. Aside from often being plain complicated, joint agreements can lead to delays in granting or obtaining permissions and difficulties in identifying rights of each party at a later stage.

Material Created by volunteers and researchers

As the ownership of material developed by volunteers and researchers can be unclear, a written agreement establishing copyright ownership should be developed between the school and the volunteer before the work commences. The agreement should also address moral rights (personal rights of the creator to be acknowledged and respected): The Legal Services Unit

<[email protected]>and the Copyright Unit

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61 Students as creators

Students are constantly creating material both in class and as part of their homework. Copyright of work created by students in the course of their studies will belong to the student unless an agreement to the contrary is established between the student and the school. Similarly, joint class projects will belong to the class jointly unless there is an agreement in place which states otherwise.

A student’s work may be used within the Department or a school for educational purposes. However, permission should be gained from the student and/or

parent/guardian for any further use of the work. Permission should be sought from the student when the material is included on the internet, video recordings, published in a newsletter and so on.

Work experience students creating copyright material during the period of work experience cannot claim copyright ownership as any material they produce would be developed under the direction of the Crown (DET).

Seeking permission to use student works

If your school wishes to use a student’s work you will need to obtain permission from the student and/or their parent/guardian. The permission letter found at the following link <www.det.nsw.edu.au/languagesupport/> can be used for this purpose (or see

Copyright Appendix E on page 88.)

Seeking permission to use Third Party Works

If your school wishes to publish material which includes third party material (material created by someone else) it is important that the appropriate permission is obtained. The example letter included in Section Three is suitable to use for this purpose. Copyright Appendix F on page 89.)

Labelling material

Although copyright is an automatic right it is still important to correctly label all material published by and for your school by using copyright notices and labels. A detailed information sheet on how to label material created by your school is available on the Smart Copying website <www.smartcopying.edu.au> (or see Copyright Appendix G on page 91.)

It is standard practice to display a copyright notice on material to notify others that the work belongs to you. It also allows the copyright owner to be identified by a collecting society or anyone wishing to use your work.

The Department of Education and Training has developed some standard copyright notices for use on Departmental copyright material. The following notices are suitable to display on school publications and websites, provided you are not creating commercial material or material which contains large volumes of third party works (material created by someone else).

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62 Standard Notice to display on publications created by your school:

© State of New South Wales through the NSW Department of Education and Training, [year of first creation or publication]. You may copy, distribute, display, download and otherwise freely deal with this work for any purpose, provided that you attribute the Department as the owner. However, you must obtain permission if you wish to (1) charge others for access to the work (other than at cost), (2) include the work in

advertising or a product for sale or (3) modify the work. This permission does not extend to copyright in the materials in this publication that are owned by others.

Standard website notice:

This website contains information, data, documents, pages and images (“the material”) prepared by the NSW Department of Education and Training. The material is subject to copyright under the Copyright Act 1968 (Cth), and it is owned by the State of New South Wales through the Department of Education and Training.

The NSW Department of Education and Training encourages the availability,

dissemination and exchange of public information. You may copy, distribute, display, download and otherwise freely deal with the material for any purpose, on the condition that you include the copyright notice “© State of New South Wales through the

Department of Education and Training” on all uses.

You must, however, obtain permission from the Department if you wish to: charge others for access to the work (other than at cost)

include all or part of the work in advertising or a product for sale, or modify the work.

To obtain such permission, please contact insert name and position details of copyright contact on telephone insert contact number or via email: insert email address

You may publish the material to another website, however if you publish an entire document or publication, we prefer you to make a direct link to this website to ensure that the latest version is always displayed. This permission does not extend to copyright in the materials on this website that are owned by others.

This website is licensed under the National Educational Access Licence for Schools (NEALS). Schools administered or represented by parties to NEALS may freely reproduce and/or make available online or electronically transmit this material in whole or part for educational uses.

Moral Rights

Moral rights entitle creators to a number of further rights under the Copyright Act including;

the right of attribution for their works the right against false attribution

the right of integrity so a work is not treated in a way that affects the author’s honour or reputation.

Moral Rights apply to a range of copyright material including literary, dramatic, artistic and musical works, computer programs and films and television programs. You must attribute an author when you reproduce, publish, perform, broadcast or adapt the work. This includes exhibition of artistic works and communication via email.

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63

Moral rights cannot be assigned, transferred or waived and irrespective of the copyright owner, moral rights remain with the creator.

However, any document created as official correspondence of the Department does not require moral rights acknowledgement. The rationale for this is that the material represents the Department rather than the work of the individual employees. What does this mean for schools?

When copying or communicating material created by someone else, schools need to ensure that the creator it is correctly acknowledged. Moral rights can be acknowledged simply by including the creator’s name at the bottom of their material. In the case of multiple creators, each name should be listed as co-authors.

There are some circumstances when it is reasonable not to attribute authorship. These include when:

it is not a major work and the creator is an employee

attribution would detract from the official purpose of the work

identifying the author/s would incur unreasonable difficulty or expense. Examples where it is not appropriate to acknowledge moral rights:

policy, guidelines and any other document formally endorsed as DET official information

letters and official school correspondence. When it is appropriate to acknowledge moral rights

The following examples could be considered for acknowledging authorship: Curriculum Support resources

discussion papers

newsletter articles or other contributions published on paper or electronically software (in programming comments)

conference or journal papers.

Culturally and commercially sensitive material

Culturally sensitive

Indigenous Cultural and Intellectual Property Rights (ICIPR) is a reference to Indigenous peoples' rights to their heritage. Indigenous peoples' heritage is a living heritage and it includes objects, knowledge, performing works, and literary works - all of those things created in the past, now and in the future.

The nature and use of Indigenous peoples' heritage is passed down from generation to generation. Usually the particular objects, sites and knowledge pertain to a particular indigenous group or territory.

Heritage includes:

literary performing and artistic works - songs, music, dance, stories, ceremonies, symbols, language and designs

all items of moveable cultural property

immoveable cultural property - sacred sites, burial grounds

documentation of indigenous peoples' heritage in archives, films, photographs, video and audio tapes and all form of media.