Application of education provisions
There is no general right for tertiary institutions to reproduce copyright material for students. However, there are a range of exceptions in the Copyright Act that apply specifically to the use of copyright material for educational or instruction purposes by or within “educational establishments”. All public tertiary institutions and non-profit private or government training establishments are educational establishments for copyright purposes. There will be some private tertiary institutions that may not come within the definition for the purposes of the Act. (See section 2 of the Copyright Act.) The education provisions contemplate use within the class room situation for teachers, lecturers and students enrolled in a course of study. Establishments are not allowed to charge students for the supply of copied material produced by a “reprographic process” (such as photocopying or electronic copying) under the Copyright Act.
Copying of literary, dramatic, artistic, musical, typographical works (section 44, 46)
Multiple copying from print works. For most tertiary education providers, copying extracts from text-based copyright material is a necessity, either for incorporation in hard copy or electronic course packs or for class room purposes. The Copyright Act allows educational establishments to make multiple copies of small extracts from literary, dramatic, musical or typographical works for an educational purpose. The copying is limited to 3% or 3 pages of a work or edition, whichever is the greater. Where such copying would cover a whole work in an edition (such as a poem, short story or article), copying is limited to 50% of the work. No person at the educational establishment may copy that part of the work or edition again within 14 days. Additionally, no person may copy any other part of that work or edition (such as any other article or chapter) within 14 days. Communication of copies to students by electronic means is permitted, meaning teachers can put a copy of an extract on an intranet for students to access or e-mail a copy to students. There is no allowance to copy any artistic work under this provision, except to the extent that it appears within the text of the copied print works.
Single copies of print works. There is permission for teachers to copy up to a whole literary, dramatic, musical or artistic work or typographical work, by any means, to prepare for instruction or use for instruction purposes. Only one copy can be made on any one occasion. This would allow a lecturer to photocopy or scan and project on to a screen for students to view in a lecture theatre. However the provision does not allow making copies for students, making available for students to copy (such as in a library course reserve collection), or communicating the copy to students. So placing a copy of a whole work on an intranet is not permitted as this amounts to the restricted act of communication to the public. Single copying of up to a whole work by hand by either the teacher or the student is also permitted for the purposes of instruction.
Multiple copying of short extracts for anthologies. There is specific permission for copying of short extracts from literary, dramatic or musical works to be included in an anthology for educational use. An anthology for the purposes of this section refers to a collection of articles or extracts from books consisting mainly of non-copyright works, Crown copyright works or works to which the publisher of the anthology holds the copyright. There are several conditions applicable. The collection must be intended for use in educational establishments and is so described in its title and in any advertisements issued by the publisher. The original publisher of the work must not have intended the work to be used in educational establishments. There must be sufficient acknowledgement of the source. The copyright work of an author may not be copied more than twice by the same publisher of the anthology within five years. If the copy is made from a collective work by several authors, then this restriction applies to any of the authors in that collection. There is no specific indication in the Copyright Act as to the amount that may be copied, whether establishments can charge for the supply of anthologies to students or whether artistic works such as illustrations and photographs may be included. However, it is likely that a court would interpret this provision in light of the quantities and limitations discussed above under paragraph a. There is no permission under this provision to electronically communicate the copied material to students.
Storing webpages (section 44A)
Websites contain a variety of copyright content, including computer programs, text, images, diagrams, typographical works and compilations. Educational establishments are permitted to store webpages for educational purposes provided that the material:
- is displayed under a separate frame or identifier;
- identifies the author (if known) and the source of the work; and
- states the name of the educational establishment and the date of storage.
The stored material must be restricted to use by students and teachers who can access it only through a verification process (such as a user password). The establishment must delete the stored webpage within a reasonable time once it is no longer relevant to the course of instruction for which it was stored. This exception does not permit webpages or the content on them to be printed for supply to students.
Copying sound recordings, films, communication works (section 45)
Teachers and students are permitted to copy films, sound recordings or communication works (and any underlying works) for the educational purposes of making a film or film sound track. There is no permission under this provision to show or play these works in public. Copying of sound recordings by teachers or students is also allowed where a lesson relates to the learning of a language or is conducted by correspondence.
Performing, playing or showing works (section 47)
Students or staff can perform literary, dramatic or musical works, for instruction purposes during class. Sound recordings, films and communication works can also be played or shown. The audience in any case may only be students, staff or others directly connected with the activities of the educational establishment (not parents and guardians). Performances, playing or showing before a paying or public audience are not permitted.
Copying and communicating communication works (section 48)
Copying of communication works such as broadcasts and internet transmissions and communicating them within the educational establishment is allowed. However, there is an important qualification that to the effect that this section does not apply if there is a licensing scheme available to administer these rights. Currently there is a licensing scheme administered by Screenrights for the off-air recording by educational institutions in New Zealand, which effectively nullifies the provision.
Anything done for examination purposes (section 49)
Staff and students are allowed to copy any copyright material if it is for the purposes of examination. This can involve setting the questions, communicating the questions to candidates, or answering the questions. Assignments, theses and dissertations which count towards a student’s final grade in a course are considered “examinations”. Copying for course packs or for other lecture material would not be covered by this exception nor would storage of examination papers in library databases for future student reference.