Copyright Liaison Officers FAQ

The following information is intended to provide an early point of reference and guidance for further investigation/research. The responses are not a legal opinion. They are provided in good faith and are not intended as binding on the VTA.

Question Under the Educational Licence accessed by 14 TAFEs, can whole works (eg. a book out of print and/or not available to purchase and/or not available within a ‘reasonable’ period), be scanned and uploaded into a secure intranet site for student access?

Response There are 2 copying schemes under Part VB for educational institutions;:. the ‘hardcopy’ scheme and the ‘electronic use’ scheme.

Under the hardcopy scheme if a work is not available within a reasonable time etc then an educational institution may copy the whole work. You must genuinely enquire and be satisfied that the work is not available. Under the hardcopy scheme that work may be copied; Under the hardcopy scheme an educational institution may also scan such a work.

The electronic use scheme applies to works already in electronic form. The hardcopy and electronic use schemes have very similar (but not completely identical) copying rights. Under the electronic use scheme a whole work, such as a book, may only be communicated (i.e. made available) if that work is not available for purchase within a reasonable time etc.

A book that is truly unavailable may be copied under the hardcopy scheme. This same book can be scanned under the hardcopy scheme. To upload and make available this book (under the electronic use scheme) requires further enquiry to be made – is it available for purchase, in electronic form, within a reasonable time etc? Do not assume it can be uploaded and made available because the book is not available to purchase in hardcopy form.

Of course, seeking permission to copy or make available electronically rather than copying is the sensible and preferred course of action.

(Query from NMIT and response May 2007)

Question  Do the educational provisions of Part VB of the Copyright Act (ie statutory educational licence scheme) apply when copies are made and used for a work which will be part of an overall project undertaken for profit?

Answer  A definite answer cannot be provided as circumstances can vary. Each of the situations raised need to be further explored to enable a detailed and specific response.

As a general comment, assuming that the work contains copyright materials as allowed in the statutory licence and all these materials have been correctly attributed, there are two relevant provisions applying to the situations raised

  • “is sold or otherwise supplied for a financial profit” and
  • the copying is “…solely for the educational purposes of the Institution…”

It is assumed that the materials are solely for the educational purposes of the institution.
The issue is whether there is unauthorised copying because they are ‘sold or otherwise supplied for financial profit’.

Some guidance can be derived from a case involving CAL and Victoria University of Technology which involved the selling, by the University, of ‘course packs’. The judge said the key question was whether the University had intended to make a profit and not whether the University had in fact made a profit. The judge found that the University had produced and distributed the course packs with the objective of providing copies at a minimum cost (the charges were intended to merely cover the cost of producing the course packs).

For specific situations you are advised to consult the relevant officer within your organisation.

(Query from NMIT and response September 2007)

The provisions of the Copyright Act allow for copying of entire works that are out of print/not available for purchase. However, this copying will form part of your remunerable copying. It is not good copyright management to simply copy the whole book merely because you are allowed.

Good management practices require you to contact the copyright holder and seek permission to copy the materials.

Good management practices require you to contact the copyright holder and seek permission to copy the materials. Refer also to FAQ “Whole Works” above.

(Query from NMIT and response April 2008)

ANTA materials are licenced to all institutes to reproduce after purchasing the original. The copyright holder at the time of publication was the Australian Government Department of Education, Science and Training (DEST). DEST has that TAFE institutes can copy under the licence from ANTA. This copying is outside the Statutory Licence and not part of remunerable copying. Any enhancement or change to the publication needs to be approved by the relevant Australian Government Department as the original copyright holder to adapt the materials.

(Query Central Gippsland TAFE and response April 2008)

VTA/CAL Agreement covers payment for all Part VB permitted copying. VB permitted copying covers both Hardcopy & Digital.

(General query and response June 2008)

There is agreement for all works except for any third party embedded works (including artistic works). If any third party materials are in them they are not covered.

(General query and response August 2012)

There is agreement for all works except for any third party embedded works (including artistic works). If any third party materials are in them they are not covered.

(General query and response August 2012)

Yes, an image from a third party embedded in Moodle is remunerable. My understanding is that embedding an image is copying. As an alternative you could provide a link to the image. RMIT has a resource of categorised artworks that provide links to free for educational purposes and other materials.

(General query and response January 2013)

Apps work under the same regulations you would use for any electronic/digital materials. When using apps, they require that you agree with their terms and conditions. Their terms and conditions supersede the copyright act or our electronic use scheme etc. Generally they’re meant to be used for personal use or within an organisation i.e. in social media, etc for non-commercial purposes, if someone wants to go above and beyond that, I would assume they would need to contact the copyright owners/creators and purchase a licence or obtain permission. Of course this depends on their terms and conditions and any subscriptions they have or may impose on people.

(General query and response January 2014).