Copyright in the time of COVID-19: an Australian perspective

Authors Amanda Bellenger Helen Balfour

Plaintext

ISSN 2473-8336 | jcel-pub.org

Volume 5, Issue 1 (2021)

Amanda Bellenger and Helen Balfour

Bellenger, A. and Balfour, H. (2021). Copyright in the time of COVID-19: An Australian
perspective. Journal of Copyright in Education and Librarianship, 5(1), 1-20.
https://doi.org/10.17161/jcel.v5i1.16249

© 2021 Amanda Bellenger and Helen Balfour. This open access
article is distributed under a Creative Commons Attribution- 4.0
International license.
JOURNAL OF COPYRIGHT IN EDUCATION AND LIBRARIANSHIP 1

Amanda Bellenger, Curtin University, Perth, Western Australia
Helen Balfour, Murdoch University, Perth, Western Australia

Author Note: Correspondence regarding this article should be directed to
Manager, Research and Copyright, University Library, Curtin University, Perth,
Western Australia, a.bellenger@curtin.edu.au.

Abstract
COVID-19 has raised many challenges in terms of applying Australian copyright
legislation and related policies to higher education context. This paper describes
the experience of Copyright Officers at Curtin University and Murdoch University
from the initial stages of border-control measures affecting delivery of learning
materials to students in China, to the wider disruption of the pandemic with
many countries implementing lockdown measures, to the current environment
where remote delivery is the “new normal.” The Australian Copyright Act 1968
(Commonwealth of Australia) provides narrow fair dealing exceptions (sections
40 and 41) and broader but more uncertain flexible dealing exceptions (section
200AB), creating a barrier for educators providing access to the information
resources needed for teaching, learning, and research. The uncertainty of
applying section 200AB was exacerbated by the conditions caused by the
pandemic. The authors describe their experiences in providing copyright support
during the pandemic as well as how the copyright services adapted to meet
requirements.
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Background
Curtin University and Murdoch University are both located in Western
Australia, with campuses located worldwide. Curtin delivers a wide range of
learning and teaching programs across the faculties of business and law, health
sciences, humanities, and science and engineering as well as through the Centre
for Aboriginal Studies. Courses are delivered to more than 50,000 students
studying remotely or through Curtin’s campuses located in Australia, Dubai,
Malaysia, Mauritius, and Singapore, with courses offered at undergraduate and
postgraduate levels. Murdoch has a broad scope of learning and teaching areas
covering business and law, creative arts and communication, engineering, health,
science, social and cultural studies, teaching, and technology. Courses are
delivered to approximately 23,000 undergraduate and postgraduate students
who study remotely or at Murdoch campuses located in Australia, Dubai, and
Singapore.
Typical of Australian university libraries, the library services at Curtin
University and Murdoch University are broad in scope. Academic libraries play a
key role in supporting their institutions’ learning, teaching, and research
outcomes. They undertake a range of activities relating to scholarly information,
including discoverability, access, and preservation. They provide programs and
spaces to develop the skills of staff and students relating to the creation and
dissemination of knowledge. 1 Despite the wide range of services offered at
Australian institutions, levels of library staffing are quite modest, with 2018
Council of Australian University Librarians (CAUL) statistics reporting 75.7
fulltime equivalent (FTE) staff at Curtin Library and 38 FTE staff at Murdoch
Library (CAUL, 2020).
Australian university libraries were quick to adopt an electronic-only
approach with their collections for users, partly due to the high proportion of
students accessing library services remotely or from global campuses and partly
due to the drive to open library spaces housing physical collections to flexible
student learning spaces. In 2018, Australian university libraries spent more than

1The Curtin Library and Murdoch Library websites provide details into their respective service
offerings.

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$358 million on collections as a sector, with expenditure on electronic collections
representing $336 million or 94% of total collections expenditure (CAUL, 2020).
Universities Australia is a representative body for the university sector.
Part of their role is to negotiate three copyright licences on behalf of the sector—
two Statutory Licence agreements governed by licensing schemes for educational
providers as defined in the Australian Copyright Act 1968 (section 113P) and a
voluntary licence with music-collecting societies including the Australasian
Performing Right Association (APRA), the Australasian Mechanical Copyright
Owners Society (AMCOS), the Phonographic Performance Company of Australia
(PPCA), and the Australian Recording Industry Association (ARIA). The first
Statutory Licence agreement is with Copyright Agency, a collecting society
representing rightsholders of text and artistic works. This agreement permits
universities to copy and communicate text or artistic works for educational
purposes, subject to copying limits of one chapter or 10% of the words or pages
per book, whichever is greater, and one article per journal issue. The second
Statutory Licence agreement is with Screenrights, a collecting society
representing rightsholders of broadcast programs. This agreement permits
universities to copy and communicate television and radio broadcasts with no
copying limits. It excludes video on demand services such as Netflix and Amazon
Prime because these services do not meet the traditional definition of broadcasts
as set out in Australian legislation. The music licence permits universities to copy
and communicate music and sound recordings for a range of purposes, including
use at official university events and for educational purposes.
Partly due to the complexity in administering these copyright licences,
including requirements to coordinate regular sampling surveys for the purpose
of the Copyright Agency Statutory Licence agreement, Australian universities
generally have staff acting in a part-time or full-time capacity as a Copyright
Officer. Copyright Officers may be staff within the Legal Service or, increasingly,
from the University Library. Job responsibilities vary by institution, but most
Copyright Officers do the following:
• Monitor the compliance with copyright legislation and policy within the
institution;
• Respond to staff and student queries relating to copyright;
4 BELLENGER AND BALFOUR

• Deliver training sessions on compliance requirements relating to learning,
teaching, and research activities;
• Assist the library with interpretation of copyright exceptions that relate to
library activities;
• Maintain online self-help materials such as websites and how-to guides;
• Act as the central contact for the university in responding to takedown
notices issued by copyright holders; and,
• Liaise with Universities Australia as required in managing the copyright
licence agreements.
The Australian University Copyright Officers network has been established as an
informal group to discuss copyright issues and regularly interact through annual
meetings organised by Universities Australia and online webinars.
Apart from the Statutory Licensing scheme (section 113P) as set out in the
Australian Copyright Act 1968, exceptions that might be relied upon by
educational providers and staff and students include the following:
• Fair dealing, for the purposes of research and study as well as criticism or
review;
• Library exceptions that cover the provision of content to library users or
other libraries for research and study purposes, preservation, and other
activities to maintain the operations of a library;
• Supply to a person with a disability incorporating requirements from the
Marrakesh Treaty;
• s200AB, known as the flexible dealing or special case exception, that may
be relied upon when no other exception applies subject to certain criteria
based on the Berne three step test. s200AB has four criteria—the use
amounts to a special case, the use is for educational instruction and not for
obtaining commercial advantage or profit, the use does not conflict with a
normal exploitation of the work, and the use does not unreasonably
prejudice the legitimate interests of the copyright owner.
Although s200AB is supposed to be a flexible dealing exception for
educational institutions and libraries, it has proved to be difficult to apply
because of its drafting choices that incorporate the “three-step test” with unclear
terms. Also, s200AB(6)(b), which states that “Subsection (1) does not apply if,
because of another provision of this Act,” further complicates an assessment of

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use as the use is not permitted if other exceptions apply, including the statutory
licensing scheme (Flahvin & Dalton, 2012). These complications result in
uncertainty on how to apply s200AB, so many institutions adopt a risk-adverse
approach and often do not rely on this exception. It’s commonly thought that
because of its complexity and difficulty to apply, s200AB is generally a failure in
terms of it being a fair dealing exception as librarians and educators are so
unsure about using it (Flahvin & Dalton, 2012). However, Coates (2019) believes
that the years of using s200AB since its drafting have set some common uses that
are generally accepted, and considers it “deliberately flexible,” although adding,
“It is up to the practitioner or institution to decide whether they think it applies
in a particular case.” Often the decision to use is hampered by uncertainty.

Library Delivery of Unit Readings
Both Curtin and Murdoch libraries have pushed their preference for
electronic resources in the last few years (Curtin University Library, 2017;
Murdoch University Library, 2012). This aggressive shift from acquiring
information resources in a digital format rather than physical format is
demonstrated by the proportion of digital holdings and expenditure. For Curtin,
more than 68% of the collection holdings are in electronic format, with more
than 98% of the library acquisitions budget going toward the purchase or
licensing of new electronic format information resources. For Murdoch, more
than 56% of holdings are electronic, with almost 94% of the library expenditure
covering digital acquisitions (CAUL, 2020).
This emphasis on licensing electronic content meant both libraries were
reasonably well-placed to respond to COVID-19 and the challenges associated
with remote delivery. Direct licensing through publishers has always been
prioritised over reliance on the Statutory Licence license because the direct
licensing approach means for some publishing agreements students may access
more than the prescribed copying limits of 10% of the words or pages/one
chapter per title. Publisher platforms often provide functionality to enhance the
experience of accessing the title, for example by providing note-taking facilities
and by integrating with third-party services such as the reference management
software Endnote.
6 BELLENGER AND BALFOUR

Both universities mandate that learning and teaching staff use online unit
readings systems to copy and communicate content in compliance with the
Statutory Licence agreements (Curtin, 2017; Murdoch, 2020). This mandate puts
the administrative burden of copyright sampling surveys as required by the
Statutory Licence on the library, which operates a centralised service. These
services can ensure that copying limits are met and required electronic warning
notices are attached to files of content copied in reliance on the Statutory
Licence. The libraries offer value-added services to staff via these systems.
Library staff can assist learning and teaching staff in sourcing unit readings—by
ordering publications if not already held in the library collections, by processing
an interlibrary loan or document-delivery request to obtain a copy, or by
digitising content if covered by the Statutory Licence. Increasingly these unit
reading systems offer advanced and sophisticated learning analytics that tell
lecturers about the take-up of unit readings by students. Curtin’s online unit
reading system is branded as Reading Lists using the Ex Libris Leganto software
and Murdoch’s online system is Talis Aspire. Both systems give learning and
teaching staff the ability to create and curate unit readings and are integrated
with the relevant learning management system.

Students in China
For Murdoch, the challenge in applying copyright exceptions during
COVID-19 came early in the pandemic. In February, the Federal government of
Australia closed the borders of the country for anyone except Australian citizens
coming home from China (these citizens then needed to go into quarantine).
Many students had returned home for the summer break in December
2019–February 2020 and would have normally returned to Australia in time for
the start of first semester in late February 2020. However, students in China
could not return to Australia because of the government travel bans in place.
Universities outside of China have had the added and long-standing issue of
China’s government policies that block many Western internet sites adopted as
unit readings for learning and teaching purposes, such as YouTube, TEDTalks
and region-blocked Australian platforms including ABC Radio, iView, and other
news articles.

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To manage the issue of delivering access to course materials to students in
China, the Murdoch Copyright Officer sought guidance from other institutions
and networks as well as in-house Legal Counsel. Lecturers would put links in
their course readings to resources, but as the links were not accessible the
library needed to make copies of online-hosted content (e.g., videos and news
articles that would ordinarily be publicly available to students outside of China
via YouTube and other online platforms) to give students in China access to their
course materials. There was also the ongoing issue of how to provide essential
readings that were not available in electronic format to students.
In some cases, universities could reasonably rely on s200AB of the
Copyright Act—the flexible dealing exception for libraries and educational
institutions for use in special circumstances—which might apply when
communicating copies of a chapter from textbooks that were required readings
for students in China who could not purchase their textbook outside Australia in
any format. To manage any potential risk in applying s200AB, Murdoch staff kept
records of what was copied and communicated in case there was any future
claim from a copyright holder or collecting society that our copyright
interpretation was too liberal and that the use was remunerable—that way they
could provide evidence of the scope of the use. Staff also restricted access to
these copied chapters by providing them only to the students in China—not the
entire class. The works were communicated with a s200AB copyright notice
attached notifying the students that the copy was made in reliance on s200AB
and that no further copying was permitted.
From the Curtin perspective, the issue in delivering content to students in
China was at a much smaller level than Murdoch, as there was not a significant
number of enrolled students at that location. Similar to Murdoch, direct
commercial licensing of electronic format readings and reliance on s200AB were
available for consideration. The Curtin issue was more focused around the
provision of essential software to the region rather than delivery of unit readings.

Early Closures and Impact on Libraries
A state of emergency was first declared by the state government in
Western Australia (WA) in response to the COVID-19 on March 15, 2020, and by
8 BELLENGER AND BALFOUR

early April the government closed the WA border to the remainder of Australia to
control the spread of the disease.
Over this period both universities rapidly transitioned to online delivery of
all lectures, with tutorials and labs transitioning to online and nontuition study
weeks adjusted to provide learning and teaching staff with preparation time to
make the move to remote delivery.
For Curtin, social distancing measures were introduced in campus venues,
with events cancelled and face-to-face meetings limited as much as possible .
From March 20 on, all lectures were moved to online, with other course
components including tutorials, workshops, and laboratories planning toward
online delivery. Staff were directed to work from home starting on March 25. The
main library building at the Bentley campus was closed from late March until
early May, and on reopening in early May initially limited access to individual
study spaces only, gradually transitioning to a return to full service in early June
2020. It is important to mention that this is not necessarily the experience of
Curtin’s international campuses, which have had different levels of restrictions
imposed by their local governments, meaning some campuses continued to be
closed to students.
For Murdoch, the closure announcement from the Provost was made on
March 13, with online-only learning and teaching to run for the duration of the
first semester. This meant that all staff had three weeks to be trained using
Blackboard Collaborate, which was the preferred platform for remote learning
and teaching delivery. With the Murdoch Library building closing in early April,
staff and students had no access to the print high-demand collections and the
general collections that housed the required and recommended unit readings.
Both Copyright Officers moved quickly to provide guidance for learning,
teaching, and library staff, anticipating that the rapid move to remote delivery
was likely to result in widespread confusion regarding copyright requirements.
With no access to physical library collections during the lockdown period, there
was a lot of pressure from academic staff to allow more than the copying limits
set out in the Statutory Licence.
The Curtin guideline document for academic staff who had to transition to
remote learning was circulated in late March and was based on guidance
provided by various networks, including the Australian Libraries Copyright

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Committee (ALCC, 2020) and Smartcopying (National Copyright Unit, n.d.). The
key messages for the Curtin guidelines were 1) that staff should continue to use
Reading Lists to provide access to unit readings (as the service and software can
track usage under the Statutory Licence agreements) and 2) for hard copy
content that is not easily accessible to students (due to the library building
closure) staff should consider alternatives, such as using content in library
databases, using openly licensed content such as Creative Commons material,
and using links instead of copies. The guidelines emphasised the point that the
copyright legislation itself had not changed, only the interpretation of the
legislation given the special circumstances of the pandemic. To supplement the
guidelines an online webinar was recorded and made available that covered the
guidelines, and two live sessions were offered via Blackboard Collaborate Ultra
wherein academic staff could drop in without registering and ask questions
about their particular circumstance. For library staff, sessions were delivered to
particular team groupings, specifically the collections staff who manage Reading
Lists and client engagement staff who are responsible for publicly managing the
print collections and are the first line for client queries.
The Murdoch guide for library staff was developed following guidance
from in-house counsel, with reference to networks, including the Australian
Libraries Copyright Committee (ALCC, 2020). This covered the exceptions library
staff could possibly rely on and what things needed to be taken into
consideration. The main audience for the guide were subject librarians and the
enquiry and lending services (ELS) team. This guide was based around the
conditions that needed to be met to use s200AB for providing copies. The guide
detailed the workflows, and a series of copyright declaration forms had to be
created. A frequently asked questions document was developed for teaching staff
and students, which explained that some special exceptions could possibly apply
during the pandemic and, similar to the Curtin approach, stressing that the
copyright laws had not changed, but due to the special circumstances we could
be more flexible in how we interpret some exceptions in the Act. The guide
stressed that teaching and learning materials go into reading lists via Murdoch’s
Talis Aspire system, and that unit coordinators should speak with the Copyright
Coordinator if they needed guidance on their special case or circumstance. As
this was an unprecedented situation, a risk management approach was adopted
10 BELLENGER AND BALFOUR

with guidance carefully followed and workflows executed. Library staff kept
meticulous records of what was copied under s200ab and under what
circumstances, including details of commercial availability checks so that if any
further issues arose we had the records to explain the context for applying the
exception.

Relying on Copyright Exceptions for Delivery of Content
The Curtin and Murdoch Copyright Officers turned to other institutions
and networks for guidance on how to manage risk during these special
circumstances. Clear guidance was not forthcoming, and the changing nature of
the pandemic meant the universities’ responses kept adjusting to reflect the
government directives to have the campuses open, partially open, or closed. This
required universities to continually adjust the way we evaluated our risk and
interpretation of copyright exceptions. The situation was very stressful for the
Copyright Officer role. As well as accommodating a drastic increase in queries,
the Copyright Officers were also transitioning to work from home and the new
normal of lockdown. A key challenge was to come up with guidance that makes
the exceptions a workflow for staff to manage without constantly consulting the
Copyright Officer, while balancing the need for case-by-case analysis when
applying copyright exceptions such as s200AB.
There were two main gaps for electronic access—textbooks issued in
physical format only and audiovisual content. For textbooks, ordinarily the
Statutory Licence would apply with its copying limits. The Statutory Licence as
defined in a previous iteration of the Copyright Act (known as Part VB)
prescribed the copying limits, including one chapter per book/one article per
journal issue. In determining whether it was appropriate to exceed the copying
limit with textbooks, the use had to be assessed on a case-by-case basis.
As a starting point, the Curtin Copyright Officer directed staff to speak to
the library collections team to determine commercial availability of the
electronic format of the requested unit reading. Where content is commercially
available for licensing in electronic formats, this was the preference in order to
comply with the Act. If more than a chapter was required, or the commercial
availability suggested print only was available, there were numerous factors
considered before determining that the proposed use fit the Statutory Licence.

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For example, a physical book only being available overseas or in a certain
physical location such as a bookshop or other library and therefore not arriving
in time for when it would be needed for study. Under normal circumstances the
students would be expected to purchase their own copy of the textbook or to rely
on the library copy due to the criticality of the book to teaching the unit (as some
titles were more core than others to the learning design and assessment). Staff
were advised to speak with the Curtin Library copyright team to talk through the
use case.
Once the libraries determined whether the textbook could be copied in
reliance on the Statutory Licence, the other issue that emerged was how we could
physically access the item because the campus libraries were closed during the
lockdown period. Curtin managed this via an interim measure, whereby the
library Reading Lists service accepted scans provided by learning and teaching
staff sourced from their personal copies and provided simple scanning
instructions in the guidelines. This was not generally permitted in normal
processes—library staff have more experience in optimising the scans for
student use and ensuring the pages were legible and formatted correctly.
Reading Lists staff could retrospectively ensure that the copies were monitored
and flush out any potentially risky copies that may exceed copying limits or may
come from an infringing source that are stored within the system.
For audiovisual content, both libraries chose to assess the use on a case-
by-case basis based on the s200AB criteria. In the Australian Copyright Act,
format shifting of physical media to an electronic format is only permitted for
domestic and personal uses. However, there is some potential to apply s200AB to
format shifting for institutional educational use. Provision of electronic
audiovisual content was a particular need for film studies. For video, the second
Statutory Licence agreement with Screenrights covers the use of broadcast TV
and radio programs for educational purposes. Another option is direct licensing
through Kanopy and other video providers. In applying s200AB, the Copyright
Officers considered the four criteria and emphasised with academic staff that
s200AB copying was a last resort so they should exhaust all other avenues of
sourcing content and they should use no more than required for their purpose
(i.e., rely on excerpts rather than full videos where possible).
12 BELLENGER AND BALFOUR

Delivery of Content to Students by Lecturers
The Curtin guidance to academic staff was that the Statutory Licence
permitted providing copies of physical material to students subject to the
copying limits, and if staff wanted to exceed these limits they should contact the
library copyright team. It was advised staff attach a cover letter with the material
reminding students that the use was for personal research and study purposes
only, and not to make further copies.
For emailing students, the Curtin guidance suggested staff use Reading
Lists as the preferred delivery method as usage could be monitored via the
centralised service. While not widely encouraged, limited emailing of content is
permissible under the Statutory Licence, however, staff were reminded that they
were to abide by the copying limits. For content accessible via library databases,
staff were encouraged to use URLs rather than make copies because of variations
in licensing terms that may or may not permit making and disseminating copies
for students.
Curtin campuses located outside Australia were advised to consider their
local legislation and reminded that access via the library-licensed databases was
acceptable because these information resources were specifically licensed for use
by Curtin staff and students regardless of location. There were also particular
campus issues: for example, at one point Singapore Library was not permitted to
provide access to nursing students on campus as these students were working on
the frontline at clinics and other health providers. For those students, a class set
of print textbooks was available at the campus library, but they were unable to be
present on-site to access the copy. As the electronic copy was not commercially
available for licensing, and the copyright holder would have already been
remunerated through the prior acquisition of the class set, this strengthened the
argument for reliance on s200AB to make a digital copy available to that specific
cohort of students for the duration of the restrictions to campus access.
The Curtin Copyright Officer ensured Curtin’s in-house legal team was
fully briefed on the library’s copying activity in reliance on s200AB and referred
particularly complex queries to them for a second opinion on the level of risk.
In order to manage risk both Copyright Officers continued to monitor
guidance issued by other organisations and networks to ensure their respective

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guidelines were up-to-date. Queries from staff and students were monitored, and
emerging issues were incorporated into the guidelines where appropriate.

Examinations
At the end of semester one, examinations were replaced with alternative
assessments delivered online at both Curtin and Murdoch. Changes to the
Copyright Act in 2017 meant that the exception covering use of copyright
material for examination purposes had expanded from face-to-face examinations
to online examinations (see s200[1A]).
In practice, the main copyright issue in relation to online examinations
was not related to teaching staff copying and communicating copyright material
but to the use of online contract cheating platforms by students. This was a new
issue that arose due to the conditions of the pandemic, with staff moving to
remote examinations in place of the regular face-to-face method. Many
universities are experiencing widespread instances of students sharing
assessments, exam questions, and answers via online platforms. Both Curtin and
Murdoch have intellectual property policies whereby the university owns
copyright to the examination questions (as these were created by staff in their
day-to-day duties as an employee) and students own copyright to their answers.
Apart from the infringement of the university’s copyright, the sharing of
examination questions and answers posed significant concerns regarding
cheating and academic integrity. This led to a significant workload for both
Copyright Officers in submitting takedown notices, as there was some urgency
with these requests, in order to have content removed within examination
windows.

How the Pandemic Changed the Copyright Service
The effect of the pandemic on copyright manifested in two areas: 1)
training and outreach and 2) increasing the adoption of electronic unit readings.
For Curtin, the rapid acceleration to remote learning meant quickly adapting to
delivery of training via online platforms such as Blackboard Collaborate. On the
whole, library workshops have been delivered to higher numbers of participants
from a wider range of global locations. Those students in offshore locations
previously may not have had access to these workshops, which were only offered
14 BELLENGER AND BALFOUR

at the Bentley campus. Copyright training, by necessity, became more targeted.
Instead of generic sessions on copyright for teaching staff, the training
specifically addressed real-life scenarios that posed problems during the
pandemic.
The Curtin Copyright Officer undertook a substantial piece of work in 2017
and 2018 to revise online self-help resources and flag copyright as a strategic
issue with the university’s Academic Board and Learning and Teaching
Committee. The implementation of Curtin’s Reading Lists software had also
raised the profile of copyright and instilled in staff the key compliance
requirement to use Reading Lists as a means of copying and communicating
copyright material, especially Statutory Licenced content. All these activities held
Curtin in good stead during the pandemic, as learning and teaching staff were
aware of the key copyright compliance messaging and the Curtin community was
quick to follow up with the copyright service if they were needing support in
providing online resources.
At Murdoch, consults between the Copyright Officer and learning and
teaching staff are now done online, and all training is done via Blackboard
Collaborate live sessions or via video training. Every semester the library hosts a
series of seminars for early career researchers in study week called “Research
Reach Out.” Previously all sessions were held face to face; now all sessions must
be delivered online. The copyright session is on understanding publisher
contracts and this session was delivered via an online video with further links to
the copyright website. Participants reported that they found this format more
convenient, and it can also now be used for workshops with researchers at our
overseas campuses in Singapore and Dubai.
Murdoch also hosts a day-in-the-life information session for library
students enrolled in the copyright unit as part of their degree. The aim of this
session is to give students an idea of what it is like to work in copyright at a
university. This too has moved to a Blackboard Collaborate session and some
positives have come out of this shift to online. Some students found it much
easier to attend the session online rather than to travel to the campus for the
session. Some also felt more comfortable asking questions in the online
environment. The training was made richer by a livelier discussion.

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In terms of adopting electronic textbooks, both Curtin and Murdoch had
already begun the move to electronic copies of textbooks over physical textbooks
for titles listed on reading lists. Murdoch Library had investigated all electronic
textbooks for law and business and had actively encouraged the acquisition of
electronic textbooks over print for high-demand titles. This work was done
before the pandemic, meaning they were in a good position to deal with library
closures. Since the COVID-19 lockdown, teaching staff saw the real-world
benefits in having their reading list titles as electronic texts for their students,
and now we have widespread adoption of electronic texts and online journals as
a primary format for course reading lists.
At Curtin, the two main consequences of the pandemic for learning and
teaching staff relating to their unit readings were 1) urgency in sourcing copies
when the prescribed reading was only available in print format and 2) a change
in sourcing unit readings because print format options were no longer attractive
when setting up a Reading List. On the rare occasion s200AB could be relied
upon, staff and students experienced a positive change in how remote learning
and teaching was delivered. For example, the School of Psychology used a
textbook and accompanying CD for a substantial part of a core unit. The CD was
an interactive software that was locally hosted in the student computer labs on
campus due to a previous permission received by the publisher. The interactive
software formed part of the unit’s regular assessments. For students who could
not access the computer labs on campus, this meant they could not complete the
unit. The library staff worked with the academics involved to revisit this issue
and do s200AB analysis to determine if a version of the software might be hosted
in a cloud environment. The book and CD were long out of print and the
publisher was not responsive to permission requests. Therefore a remote copy
could be made in reliance on s200AB for this short-term need. Interestingly
enough, the copyright side was easier to resolve than the technical side—as the
university then had to put in place infrastructure to ensure students could easily
access the ‘digitised’ software in the cloud environment using secured platforms.
Both universities are moving toward using and creating open educational
resources (OER) as an alternative to high-cost e-books. Future work in this area
will need to balance limited library resources with the workload of learning and
teaching staff in sourcing, using, and creating OERs.
16 BELLENGER AND BALFOUR

Reflections and the Current Situation
As of March 2021, both Curtin and Murdoch are continuing to take a
blended approach, with all lectures delivered online only and most tutorials and
labs offered face-to-face depending on class size.
Both institutions reported the following similar experiences
• As the pandemic hit there was increased reliance on the copyright
service in interpreting legislation and assessing risk in the new
environment. The acceleration to remote learning due to the lockdown
period meant roughly a two-week turnaround time for institutions to
get up and running. Now that the pandemic is the new normal this
support has levelled off and reverted to usual demands on the service.
• Guidance was provided by a range of organisations and networks, and
sometimes this was unclear or conflicting. This made the practicality of
applying guidance to our local setting problematic.
• There were attempts to be proactive with digitising works before
physical library buildings had closed, thereby removing access to print
collections. However, the nature of the flexible-dealing exception limits
the ability of educational providers to make just-in-time copies for
specific purposes rather than building a library of content just in case.
Therefore, copies could only be made once commercial availability
checks were completed and further clarification around the specific use
provided.
• Networks of other Copyright Officers were useful in speaking through
specific examples and sharing experiences. This was a useful way to
inform risk assessment when exceeding copying limits under the
Statutory Licence or assessing use against s200AB.
• The pandemic and acceleration toward remote learning highlighted the
deficits in adopting a textbook that is only accessible in print format for
unit coordinators. It is hoped this can be a useful reference point to
have strategic conversations with senior stakeholders to push for
policy that mandates accessible unit readings and drive higher
adoption of open educational resources as a freely available online
alternative.

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• The pandemic has significantly affected the delivery of examinations,
with a blended approach and new models of assessment. This approach
is realising the potential of new technologies in innovating in this area.
• It is critical that institutions retain records on what was copied and
under what circumstances in their library systems as a means of
managing their risk when pushing the boundaries of what may be
accomplished under copyright exceptions such as s200AB.
• Post lockdown, many of the queries transitioned from requests for
accessible copies of unit readings to requests for use of copyright in
music and film used in events that had transitioned online, such as
orientation activities and conferences.
• As a collaborative activity, Murdoch and Curtin have planned two
workshop discussion days around the use and creation of OERs. The
workshops will focus on discussion groups, collaborative work, and
sharing ideas. We are waiting for WA COVID-19 restrictions to be lifted
before we can hold an in-person event like this. Tentatively we have
this planned for February 2021.

Finally, the increased demand for the Copyright Officers to analyse use
cases against s200AB has given both individuals more confidence in applying this
copyright exception even though it continues to be complex in its application. As
mentioned, both sets of guidance issued by Curtin and Murdoch Copyright
Officers emphasised that the pandemic did not change the legislation, that the
rules still applied, and that it was only our interpretation that had modified. This
change in approach is best demonstrated in how we considered the special case
and commercial market effects for copyright exceptions. For s200AB the
circumstances of the use must amount to a special case and no other exception
can apply—the pandemic easily fit the definition of a special case because it was
an unprecedented experience for the universities. s49 of the Act is a library
exception that permits libraries to supply material to clients for their own
research and study purposes. Similar to the Statutory Licence agreement, this
section has copying limits. However, libraries can exceed these limits if a copy is
not available at a reasonable time and at an ordinary commercial price. The
pandemic altered what we defined as “reasonable” and “ordinary.” As campus
18 BELLENGER AND BALFOUR

locations were not available to students, our interpretation of copyright
exceptions had to reflect the urgent needs of our new normal.

Need for Legal Reform
The experiences of Curtin and Murdoch emphasise the issues for
educational providers in providing access to copyright materials for learning,
teaching, and research purposes in a remote environment when physical
facilities and collections are not available, as well as inadequacies with the
current copyright legislation in providing certainty in applying copyright
exceptions. This suggests a need for more clarification of s200AB and its
application, consideration of expanded fair dealing provisions, or even adoption
of a fair use doctrine similar to the United States.
Both Copyright Officers found assessing risks difficult because
determining commercial availability can be time consuming and cannot reliably
lead to a clear outcome; sometimes content can be unable to be identified,
located, or easily written off as commercially unavailable.
The Minister of Culture and the Arts announced progress on proposed
copyright reforms in August 2020 that will include the following five measures
(Commonwealth of Australia, Department of Infrastructure, Transport, Regional
Development and Communications, 2020):
1. Introduce a limited liability scheme for use of orphan works;
2. Introduce a new fair dealing exception for noncommercial
quotation;
3. Amend library and archives exceptions;
4. Amend education exceptions;
5. Streamline the government statutory licensing scheme.
No exposure draft has been written at time of publication, but we welcome
reforms around the issues highlighted in our paper. Australian Digital Alliance
chairperson Derek Whitehead further echoes our anticipation:
Lockdown has forced cultural bodies, schools, universities and
government bodies to quickly transition to online delivery and our current
Copyright Act couldn’t keep up. These changes are crucial to Australia’s
ongoing response to the global pandemic and will position our cultural

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collections and educators well to meet future challenges, whatever they
may be. (Bledsoe, 2020, August 13)

Conclusion
The COVID-19 pandemic has forced educational providers to accelerate
their provision of learning and teaching via online platforms and tools. It
provides a useful lever in strategic conversations about the importance of
accessible readings and the benefits of open access. For Australian institutions, it
has tested the limits of our copyright exceptions, particularly s200AB, and
highlighted the urgent need for legal reform to give libraries more certainty in
how to apply the exceptions.
20 BELLENGER AND BALFOUR

References
Australian Libraries Copyright Committee. (2020). Copyright and remote supply
webinar: Video and slides. Recording of webinar held May 21, 2020.
https://libcopyright.org.au/copyright-and-remote-supply-webinar-video/
Bledsoe, E. (2020, August 13). Government proposes much needed copyright
changes for online access. Australian Digital Alliance.
https://digital.org.au/2020/08/13/access-reforms-announcement-media-
release/
Coates, Jessica. (2019). “Copyright can dos: Navigating the complex world of
copyright to empower learning.” Access, 33(4), 34–37.
Copyright Act 1968 (Cth) (Austrl.).
Commonwealth of Australia, Department of Infrastructure, Transport, Regional
Development and Communications. (2020, August 13). Copyright access
reforms. https://www.communications.gov.au/departmental-
news/copyright-access-reforms
Council of Australian University Librarians. (2020, October 7). Statistics services:
Data files for 2010–2019. https://www.caul.edu.au/programs-
projects/statistics-services
Flahvin, A., & C. Dalton. (2012). Flexible exceptions for the education, library and
cultural sectors: Why has s 200AB failed to deliver and would these sectors
fare better under fair use? Policy Australia, Report prepared for the
Australian Digital Alliance/Australian Libraries Copyright Committee.
https://libcopyright.org.au/wp-
content/uploads/mp/files/posts/files/appendix-1-ada-s200ab-report-15-
nov-2012.pdf
National Copyright Unit. (n.d.). Smartcopying: COVID-19 copyright issues.
https://smartcopying.edu.au/covid-19-copyright-issues/

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