Désolé, cet article est seulement disponible en Anglais Américain.

Delia Browne is head of Australia’s National Copyright Unit, which provides specialist copyright advice to Australian schools and the technical and further education (TAFE) sector, and conducts negotiations with collecting societies on behalf of them. In that role she led the successful education law reform efforts in 2005-2006 which resulted in the introduction of free educational use copyright exceptions. She is one of the co-founders and President of Peer 2 Peer University, and also one of the people who drew up the Cape Town Declaration on Open Education.

GM: Could you say a little about the 2005-2006 education law reform efforts, which led to the introduction of free educational use copyright exceptions in Australia?

DB: Back in 2005 there was a review of Australia’s copyright law, to see what exceptions you might need. Basically, [this was] in response to the Australia-US free trade agreement. We weren’t ready to think about fair use in Australia, and what we were reacting to at that time was a push by the collecting society copyright agency who was trying to get schools to pay for reading online. We were also trying to update our law in relation to using things like interactive whiteboards in the classroom, because our exceptions were very much based on pushing a DVD recorder into a classroom and pushing play.

So at that stage we got a flexible dealing for education exception, we got an exception that specifically dealt with educational websites, and an exception that tried to update performance and communication to a classroom. But they haven’t stood the test of time since their introduction in 2006, because there’s still been a few drafting errors with it.

GM: How did your Peer 2 Peer University come about, and what are its aims?

DB: I’m one of the cofounders of Peer 2 Peer University or P2P University, which started around 2009. The original idea behind Peer 2 Peer U was to harness everything that was free on the Internet, and set up social learning – like a book club – to help people take advantage of open and free educational material.

Peer 2 Peer U has now moved away from being strictly online. What we are now doing is taking the online courses, and bringing them into the physical spaces of libraries, and training librarians to facilitate, in face-to-face groups, people using the free and open online courses. That’s now piloted through America, Kenya, Paris and other places.

GM: How does copyright fit into that?

DB: Everything we do is openly licensed, under a Creative Commons licence. CC licences were originally created not as a fix to copyright but as a way to license material, and use licensed material in a very flexible way. [That is,] without having to rely on complex copyright exceptions or trying to find whether or not that material was out of copyright because it’s kind of difficult to do. So Peer 2 Peer University is an open education project, which means that whatever we do is shared, free and open, not just free to look at, but free to use.

GM: I know you are a fan of open education, and Open Educational Resources (OER): could you say a little about what exactly the latter are?

DB: Teaching and learning materials of any sort – it could be video, it could be images, film, could be music, or an online game. Something that is licensed under a Creative Commons licence, which allows the person who is using it to change it, revise it, remix it, share it, distribute it, without having any fear of copyright infringement.

GM: How important do you think that openness is for OER?

DB: You’ve probably heard of the Open Government Partnership agreement, which many countries have signed. Increasingly, in the open government action plans you’ll see OER being a core early component of governments trying to make sure that money is being used to create teaching materials, and that those teaching materials are licensed as OER. That allows everyone to use and re-use them, including schools, teachers and universities, but also lifelong learning and libraries. And also to a certain extent businesses, because the taxpayers have already paid for it once, and everyone’s a taxpayer, including business.

So OER is very important for increasing the amount of great educational content out there. Teachers are very creative, and OER allows them to share what they do, and it also helps save educational budgets considerably. For instance, in Australia, we estimate conservatively that Australian schools – there’s about 10,000 of them – spend over AU$700 million [about €500 million] a year buying content. And on top of that spend they also pay another AU$95 million [€65 million] on collective licence fees to collecting societies. There’s only 3.5 million schoolchildren in Australia.

GM: Could you say something about your current efforts to introduce fair use in Australia: what’s the background, why you think it’s something that should be done, and where you are in the process?

DB: The government in Australia has conducted two recent reviews, the Australian Law Reform Commission review on copyright in the digital economy, and most recently the [Australian Government’s] Productivity Commission review of IP arrangements [the Australian government’s response to the latter has just been published]. They’ve also engaged at the same time Ernst & Young to do a cost-benefit analysis of introducing a fair use style exception in Australia.

All three reviews have recommended the introduction of fair use, and a repeal of all the other exceptions, which is about 30 of them existing in the Copyright Act in Australia. Some of them work in the digital environment, most of them don’t. So that is something that the government has yet to decide [whether] it will implement.

The interesting thing is a lot of governments who are reviewing their copyright laws now are looking at fair use as being a flexible open-ended exception, that is future-proofed, that will always adapt to whatever new technology. Because the base question is: is it fair? – look at these factors; and the second question: what about the purposes? – like education, non-consumptive use, cultural library use, parody, satire, criticism review, reporting the news etc.

So, it’s interesting: Korea’s got a fair use, Singapore’s got a fair use, Israel’s got a fair use – of course, US has had it since 1976. South Africa is undergoing a law reform review at the moment, they’re looking at fair use. Australia is [looking], and Canada introduced something called « fair dealing for education », which is like a fair use.

So you’re seeing all the countries that are looking at their laws are not going for more exceptions, they’re trying to future-proof. Unfortunately in Europe it is much more difficult because of the EU Copyright Directive, but it’s really important to start thinking about what does education look like in the 21st century. I don’t get asked about photocopying, or copying from television any more, I don’t get asked about video recorders. I get asked about document cameras, iTunes U, Google Classroom, 3D printing, artificial intelligence, augmented reality.

What we’re talking about is not a textbook or even a digital text book in the classroom any more. It’s completely different, and we need laws that allow us to collaborate with industry, collaborate with space [agencies] and away from focusing just on the publishers.

GM: Do you think that fair use is the way to go for the future?

DB: I think there’s a lot of misinformation about what fair use is, and that’s done by the usual suspects – the publishing and film industries. They say fair use is a free for all, and fair use is not a free for all. In my view, fair use will cover things that are really not in the traditional copyright owners’ interests like freely-available Internet materials. I think there’s still a role for collective licence agreements. Those would come into play for uses that are not fair.

I think we need to be moving into regimes that have fair use plus appropriate collective licensing for uses that are never going to be fair in the educational world. That’s what we see in Australia as being the right solution – fair use plus collective licensing, and we say that pretty consistently. But it’s interesting how often the rightsholders seem to forget that second part we talk about. Which is, yes, we do see a role for collective licensing, but we don’t think licensing should cover things that are clearly fair and non-prejudicial to the copyright owner.

GM: Are there any other areas of Australian copyright law you’d like to mention?

DB: We need to make sure that we are dealing with disability access. One of the nice things in Australia is we have a bill which provides a much broader [copyright] exception for disability access which includes deaf and all disabilities. It’s important that we don’t just focus on visually impaired people, but the deaf disabled as well.

One thing we haven’t got fixed yet in Australia is having exceptions to the anti-circumvention technological protection measures [TPM – aka DRM] provision. Our flexible dealing applies to film, and audiovisual and sound recordings. If it’s a DVD we can’t actually take an extract from a DVD under our exceptions, because we’re going to break a TPM. So you need an exception for circumventing TPMs in order for you to take advantage of the exceptions that have been granted to you.

Safe harbour is still a problem in Australia. Schools, universities and any Australian startup business doesn’t have safe harbour. Safe harbour seems to apply to telecommunication companies, but not to any other entity that might be operating, like an ISP. So that’s another area we need to fix in Australia.

GM: As you know, safe harbour is under threat in the EU because of Article 13 in the proposed revisions of the Copyright Directive. Any comments on that?

DB: You give rightsholders what they want, and then they change their mind again. It’s kind of like, guys, we’ve got to stop being at each other’s throats, and have to start being a little bit more pragmatic about the future. Because copyright is not there to protect an obsolete or moribund industry. The disruption that is happening to your industry is not to do with exceptions, or copyright. It’s about the fact that people are being more innovative, and reacting to what they think the customers would like and need.

Feature image by republica/Gregor Fischer.