TO CUSTOMERS AND USERS OF PIVOT POINT EDUCATIONAL MATERIALS:
We have become aware of some misperceptions concerning the protection afforded to our educational materials, including text and digital works, under Australian Copyright Law. To clarify matters, we have set forth below an analysis prepared with the assistance of Australian Intellectual Property counsel. In summary, the ability of third parties to copy or reproduce all or part of Pivot Point’s copyrighted materials is extremely limited, and in most cases, non-existent. In some cases, it is subject to compliance with strict legal requirements, including payment of
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1. In general, educational institutions (or students) can copy a up to 10% of a text book one time for educational purposes without having to pay a royalty. While in certain< circumstances an educational institution can copy an entire text book under the statutory license scheme, provided it pays a royalty, however, this statutory license does not apply if the text book
is available within a reasonable time at an ordinary commercial rate, so it does not apply to any Pivot Point works.
2. While educational institutions (or students) can copy what amounts to a "fair dealing" portion of a film ( or CD or DVD), without having to pay a royalty, copying more than
a "fair dealing" infringes, as there is no statutory licensing scheme for films (that are not broadcast on television). For reasons discussed below, copying of Pivot Point’s CD’s and DVD’s would not be permitted as “fair dealing”.
There is a "fair dealing" exception to infringement in Australia's Copyright Act 1968 ("Act") which allows some copying for research or study. For literary works (i.e. text books) there is guidance in the Act as to the quantity that may be copied, being
- Text books published in hard copy - 10% of the number of pages; or if the text is divided into chapters - a single chapter.
- Text books published in electronic form - 10% of the number of words; or if the text is divided into chapters - a single chapter.
However, this exception does not allow a student or teacher to make subsequent copies of, say a different chapter of the same text book or repeated copies of the same chapter. NGEDOCS: 059410.0901:1774630.1
In addition to the fair dealing exception, the Act includes a statutory license scheme.
This allows an educational institution to copy the whole or part of a text book, but only if:
- the educational institution has given a remuneration notice to the relevant collecting society (for text books this is Copyright Agency Limited ("CAL"));
- the reproduction is solely for the educational purposes of the educational institution or another educational institution; and
- the educational institution complies with certain record keeping and notice requirements.
Moreover, under the statutory scheme, an educational institution can only reproduce the whole or more than a "reasonable portion" (see below) of a text book if the educational institution is satisfied, after reasonable investigation, that reproductions (other than second hand reproductions) of the work cannot be obtained within a reasonable time at an ordinary commercial price. Since this last requirement cannot be satisfied for Pivot Point texts, it is unlikely an educational institution can ever claim a legitimate statutory right to copy an entire text.
In the context of the statutory license, a copy is a "reasonable portion" if:
- for text books published hard copy edition, the pages copied:
(a) do not exceed, in the aggregate, 10% of the number of pages in that edition; or
(b) in a case where the work is divided into chapters exceed, in the aggregate, 10% of the number of pages in that edition but contain only the whole or part of a single chapter of the work.
- for text books published in electronic form:
(a) the number of words copied does not exceed, in the aggregate, 10% of the number of words in the work; or
(b) if the work is divided into chapters--the number of words copied exceeds, in the aggregate, 10% of the number of words in the work, but the reproduction contains only the whole or part of a single chapter of the work.
Films, CDs and DVDs
Like text books, a "fair dealing" exception to infringement applies for films. Unlike text books, there is no quantitative guidance in the Act as to what is a fair dealing, however the relevant factors include:
(a) the purpose and character of the dealing;
(b) the nature of the audio visual item;NGEDOCS: 059410.0901:1774630.1
(c) the possibility of obtaining the audio visual item within a reasonable time at an ordinary commercial price;
(d) the effect of the fair dealing upon the potential market for, or value of, the audio visual item; and
(e) in a case where part only of the audio visual item is copied--the amount and substantiality of the part copied taken in relation to the whole item.
Copying or using a film in a way which is not "fair dealing" infringes. Given due consideration of factors (c) , (d) and (e) Pivot Point does not believe that a fair dealing exception exists with respect Pivot Point’s CDs or DVDs.
There is a statutory licensing scheme that educational institutions can avail themselves of if a film is broadcast, however there is no statutory licensing scheme for non broadcast films, such as Pivot Point produces.