Weatherall on CAL and schools paying license fees for the Internet

Kim Weatherall on CAL’s outlandishing push for charging schools for directing students to use the Net rather than photocopies (which they pay CAL a license fee for).

It makes for excellent reading – here’s some excerpts – I’d encourage all to read the whole thing.

Schools use copyright material in Australia under a statutory license (Pt VB of the Act). They pay a yearly fee, usually determined on a per student or per page basis, for copying copyright material, and for communicating copyright material to ‘the public’. (Two of the exclusive rights of the copyright owner in Australia are the right to copy, and the right to communicate to the public. The statutory license allows schools to do this as much as they like, so long as equitable remuneration is paid to copyright owners. Remember, that Australia has no fair use defence). The system (at least for literary/artistic works) is administered by the Copyright Agency Limited. The Copyright Tribunal sets rates, and surveys are done to see what copying is happening. There is a current dispute between CAL and the Schools of Australia, regarding the rates appropriate for electronic copying/communication/use. In that context, CAL is saying that one things that should be included in the ‘survey’ used for sampling – to see how much is going on – is when teachers ‘Tell Students to View’ material online. The Schools say this shouldn’t be on the questionnaire. CAL apparently have several arguments as to why it should be. But the one that is generating all the heat and light right now is this one: that when students view something online, a remunerable act occurs.

But wait a minute. How can it possibly be argued that schools should pay in this situation? Schools pay for their of copying or communicating a work, for their educational purposes. If a student clicks on a link, or goes to a site, how is the school doing any copying? Or communicating to the public? CAL’s argument is that when a student clicks on a link they have been told to view, or types in the URL, that student is communicating the work to the public – because they are electronically transmitting the material to themselves, and they are the ‘copyright owner’s public’.

then . . . .

A couple of final comments are appropriate. I noted at the outset that one reason why this argument might be being made is because CAL are concerned that increasing use of the Internet in schools will cannibalise the copying previously made under the educational statutory licenses. If teachers, and lecturers provide lists of links, instead of copies of readings, CAL might have reason to be concerned that copying will, indeed, drop. I can understand such a concern. But there are two reasons why it should not be dealt with this way.

First, as I noted at the outset, remuneration is provided through the statutory licenses in recognition of the fact that copying is an exclusive right of the copyright owner, and most particularly, because copyright owners suffer some loss when copying occurs in schools and universities. This is of course particularly true for educational books. If schools could just copy educational texts, they would buy one and copy. Thus a statutory license is appropriate. The point here is that we are talking about publicly available material on the Internet. The copyright owner in those circumstances makes a choice to put stuff online. They cannot be expecting to be remunerated. If you want to be paid, put it behind a wall.

Second, concerns like cannibalisation should be dealt with openly, through debate. Not by attempting to stretch statutory provisions beyond their natural reach. If copyright owners want us to consider the creation of an exclusive right to view online, let’s have the debate. In Parliament. I think I know which way that debate would go.

One final point. The legal argument I’ve discussed here is only one aspect of CAL’s case, as I understand it. There is more, much more to the whole thing. What I’ve examined here is one legal argument – but an important, and truly radical one.