Commercial activities and copyright in Australian universities

Abstract

With government funding for most Australian universities below 60% and falling a major strategic emphasis for universities has been on securing other sources of operating revenue, including commercial opportunities and partnerships. The implication of increasing commercial activities such as non-award and tailored professional programmes, contract research and consultancies within a university environment raises a number of issues in relation to copyright. This paper will discuss whether the educational provisions (including section 200AB introduced in the 2006 amendments) or the fair dealing provisions within the Copyright Act could be applied if copyright material is reproduced as part of a commercial activity undertaken by a university.

Keywords:

• copyright law
• commercial activities
• universities

Acknowledgements

The author wishes to thank Margaret Jackson for her assistance and comments.

Notes

1. Government funding includes commonwealth grants, commonwealth payments via HECS-HELP and FEE-HELP and financial assistance from state and local governments.

2. The previous Federal Government was planning to introduce the Research Quality Framework (RQF) in 2009 as a basis for research funding for Australian universities. The RQF was to focus on quality and impact of research. However, the announcement in February 2008 by the new Federal Government (elected in November 2007) that the RQF will be replaced by an Excellence in Research for Australia (ERA) initiative has not clarified the situation in relation to the effect that the ERA will have on universities’ research funding.

3. Section 53A related to multiple copying of insubstantial amounts of works. Section 53B was introduced into the Copyright Act to ‘establish a statutory licensing scheme for the multiple reproduction of works and periodical publications in educational institutions’ (Ricketson and Creswell 2002, para 12.100).

4. Education purposes is defined under s 10(1A) of the Copyright Act 1968 (Cth).

5. A discussion of the three-step test is beyond the scope of this paper.

6. Copyright Agency Limited and others v Victoria University of Technology, (1994) 125 ALR 278.

7. (1994) 125 ALR 278.

8. (1994) 125 ALR 278.

9. (1994) 125 ALR 278.

10. (1994) 125 ALR 278.

11. (1994) 125 ALR 280.

12. (1994) 125 ALR 279.

13. See note 5.

14. (1990) 95 ALR 625.

15. (1994) 125 ALR 278.

16. Copyright Agency Limited and others v Victoria University of Technology, (1995) 128 ALR 482, 482.

17. Copyright Law Review Committee. 1998. Simplification of the Copyright Act part 1: Report examining the exceptions to the exclusive rights of the copyright owners. http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(756EDFD270AD704EF00C15CF396D6111)~CLRC+Simplification+of+the+Copyright+Act+1968+-+Part+1.pdf/$file/CLRC+Simplification+of+the+Copyright+Act+1968+-+Part+1.pdf.

18. (1990) 95 ALR 625.

19. (1990) 95 ALR 625, Justice Beaumont, 629.

20. (1990) 95 ALR 625.

21. Television New Zealand v Newsmonitor Services Ltd, [1994] 2 NZLR 91.

22. [1994] 2 NZLR 91, para 51.

23. [1994] 2 NZLR 91, para 51.

24. (1990) 95 ALR 625.

25. Copyright Law Review Committee, Contract and copyright. 2002. http://www.ag.gov.au/www/agd/agd.nsf/Page/RWPDD516F2DE964EF5ACA25735A001E5106.

26. Attorney General Department. 2005. Fair use and other copyright exceptions: An examination of fair use, fair dealing and other exceptions in the digital age, Issues Paper.http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(CFD7369FCAE9B8F32F341DBE097801FF)~FairUseIssuesPaper050505.pdf/$file/FairUseIssuesPaper050505.pdf.

27. The issue of copyright notices placed on websites and the terms and conditions imposed on users is beyond the scope of this paper.

28. Databases available for use by RMIT students and staff accessible via the RMIT library website.

29. (1990) 95 ALR 625.

30. (1990) 95 ALR 625.

31. (1990) 95 ALR 625.

32. (1990) 95 ALR 625.

33. (1974) 23 FLR 112.

34. (1994) 125 ALR 278, (1995) 128 ALR 482.