Theories of Law

Theories of Law

Topic: Discuss the fair use of copyright materials by introducing “fair use” provisions, based on theories of utilitarianism, for educational purposes in Australian schools.

Theories of Law

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Introduction

 

Jeff MacSwan and Kellie Rolstad, a couple at Arizona State University brought a proceeding against Arizona State University in regards to a violation of copyright law, claiming for three million dollars in damages. This occurred because Arizona State University provided an online course, which was developed by Jeff MacSwan and Kellie Rolstad without their permission.[1] This example proves that advanced in technology have not only changed people’s lives but also how technology transmutes teaching methods in schools all over the world. Despite the many great advantages of using up-to-date teaching technology, many issues arise as well. In particular, the use of unauthorised copyright materials in classes has been a controversial issue, along with such as cheating on exams using smartphones, watches and spy glasses. Although Australia shows a slow progress in regards to using up-to-date teaching technology compare to other countries, innovative teachers and educators are profoundly concerned about the use of copyright materials.[2] Currently, the Australian Law Reform Commission (‘ALRC’) is examining Australia’s copyright exceptions to make sure teachers and students are suitable for the digital environment.[3]

This essay will discuss the fair use of copyright materials by introducing “fair use” provisions, based on theories of utilitarianism, for educational purposes in Australian schools. Also, it discusses why stakeholders such as teachers, students, educational organisations and communities should be allowed to use copyright materials in order to provide a quality education service and improve educational environments.

 

 

 

Australia's Current Copyright Exceptions

This section will review the current status of Australia’s copyright exceptions law. Pursuant to section 33 of the Copyright Act 1968 (‘Copyright Act’), copyright owners have ownership of their works for 70 years. After 70 years, the copyright no longer exists and people are allowed to use the material for free. If the author died less than 70 years ago, a person must ask author’s literary heirs for permission. If the author has not died and the duration of copyright has not passed 70 years, a person must seek copyright exceptions to use copyright materials. However, the Copyright Act stipulates that the use of copyright materials for ‘fair use’ does not amount to the inurnment of the right of the copyright owner. Sections 40,41,43A and 44 in Div 3, 4, 4A, 4B and 7 of the Copyright Act specify actions which do not constitute infringement of copyright works: research or study, criticism or review, temporary reproductions made in the course of communication, and inclusion in short extracts in collections for use by places of education.

The concept of fair dealing was first mentioned in the landmark case of Gyles v Wilcox,[4] as the doctrine of fair abridgement, which would later evolve into the concept of fair use. Lord Hardwicke acknowledged that the abridgment of larger works into small excerpts was a necessary evil of educational advancement and consistent with the purposive interpretation of the act as being “encouragement of learning”. In the Oxford dictionary, the term ‘fair use’ has the following definition: brief excerpts of copyright materials may be allowed to be used under certain situations including education use such as teaching, researching or new reporting without permission from the original owner of the materials. Education use means that copyright material may be used in schools, colleges and universities as well as libraries and other non-profit organisations which are also considered educational institution.[5] Rich Stim, a US lawyer, defined “Educational Purposes” as the use of copyright materials in non-commercial institutions for teachers and students to prepare or plan non-commercial studies for classes, workshops or seminars.

In Australia, the term ‘fair use’ for the purpose of education in the classroom is not regulated in the current legislation. Although, a educational copying scheme allows teachers to use copyright materials  without a copyright clearance, yet it is limited. This is the reason that the ALRC is reviewing the current provision of the copyright exceptions to make sure it is suitable for the digital environment. Teachers, students, parents and schools are all expecting to be able to use the most up-to-date and effective teaching materials and methods for the benefits of Australian students. Since, current copyright laws are years behind and cannot keep up with the advancing technology, teachers are facing complex copyright issues. The current copyright exception provision does not make sense in a digital age.[6] Therefore, the current provision should be amended and the provision of the fair use of copyright materials should be introduced to maximise the educational benefits and experiences for teachers and students.

 

 

Fair Use of Copyright Materials and Utilitarianism

This section will discuss why the educational use of copyright materials without any permission of the original owners, should be allowed. Doing so would maximize the educational benefit and experiences for a  great number of people. The possible stakeholders in this matter includes copyright owners, teachers, students, educational organisations, communities.

This paper has adopted the utilitarianism theory to illustrate why the fair use of copyright materials should be permitted in classrooms. Utilitarianism is an ethical theory which was formulated by Jeremy Bentham (1748-1832) and was later modified by John Stuart Mill (1806-1873). These two scholars conceptualised utilitarianism in slightly different way when it came to happiness. Utilitarians argue that any action should consider the greatest happiness for the largest number of people and the outcome is determined by the moral worth of the initial action. Viz, whatever action is beneficial to the greatest number of people and maximizes utility is deemed to be good, whilst whatever action is beneficial to the least number of people is deemed to be the least good. In addition, Bentham developed an algorithm, felicific calculus, that calculates the degree of pain and pleasure according to the seven criteria: Intensity; Duration; Certainty; Propinquity;[7] Fecundity;[8] Purity;[9] and Extent. In this paper, only four major criteria including Intensity, Extent, Duration and Certainty will be addressed as these four factors are directly relevant to the proposal of this essay.

 

The first test is an ‘Intensity’ test which measures how strong pain or pleasure is. In this case, intensity should be concurrently considered with the ‘Extent’ test. This is because, the degree of intensity of the pleasure of teachers, students, educational organisations and communities that would be created by allowing the legal use of the copyright material during classes will be far greater than the pain suffered by copyright owners. The degree of intensity of pleasure is also directly affected by the number of  people affected. Bentham stated that “the strength of public opinion is in combined proportion to its extent and intensity”.[10]

‘Extent’ is the most important, inter alia, Bentham’s felicific calculus as it creates a great synergy effect together with the other criteria. ‘Extent’ determines how many people will be affected by the fair use of copyright materials during the classes. A simple example was illustrated by Bentham. He created a sui generis scheme for “pauper management” that  was supposed to reduce the number of beggars on the streets. Bentham believed that encountering beggars on the streets could reduce the happiness of people in two ways. First, beggars could cause the pain of sympathy and second, they could produce the pain of disgust. In these respects, Bentham suggested removing beggars from the streets and collecting them in a workhouse.[11] Some people may think this scheme is unfair for beggars as some beggars may enjoy their life on the streets, rather than working in a poorhouse. However, Bentham concluded that the total sum of pains suffered by the public is far greater than the unhappiness felt by beggars taken to the workhouse.[12] Some other people were concerned that, by building and operating a workhouse, a lot of burden would be imposed on taxpayers to maintain the system, which may reduce their happiness, as well as utility. Yet, Bentham refuted the argument of the “pauper management” scheme as totally self-financing.[13]

 

Allowing the use of copyright materials, for  the purpose of public education, will maximise the pleasure of not only teachers and students but also people who receive benefits from these educated people, even though the original copyright owners may suffer from their intellectual property being abused.  Educated people would bring maximum benefits to communities and our society, therefore copyright exception law reform should be considered in terms of utility. According to the 2016 research by the Australian Bureau of Statics (‘ABS’), a total of 3,798,226 students are enrolled in schools across Australia. The number of students enrolled in government schools increased by 1.6% (38,672), enrolled in Catholic schools increased by 0.2% (1,511) and  enrolled in independent schools rose by  1.3% (7,070). Also, the number of school staff in Australia increased by3.2% (120,748).[14] This research result proves that every year, the number of students increase and more people want to be educated in tertiary organisations. In Plimer v Roberts & Anor (1998) ATPR 41-602, the court ruled that public lecture is not in trade or commerce since speaker are not paid, even though the public could buy videos at the lectures. This case and above research proves that the total sum of pleasure experienced by public and people in communities is far greater than unhappiness felt by copyright owners.

The third test, ‘Duration’, illustrates how long the pleasure or pain will last. In this matter, although the duration of the pain of the copyright owners will be long, the duration of the pleasure of beneficiaries including teachers, students, educational organisations and communities will be longer. Current legislation regulates that copyright owners have ownership of their work for 70 years. If new provisioned of the fair use of copyright material are amended, the duration of the pleasure of copyright owners will be dramatically reduced, in other words, the duration of the pain of copyright owners will increase, whereas the duration of the pleasure of beneficiaries will be greatly extended. However, I agree with Fred Feldman, who said that the intrinsic value of pleasure is not simply determined by the duration of pleasure, it is also in combination with extent.[15]

 

The fourth test is ‘Certainty’. The aim of the ‘Certainty’ test is to find out how likely or unlikely it is that pleasure will occur by using copyright material in the classes. It is certain there will be both pleasure and pain as a consequence of facilitating the use of copyright materials in classes. Lawrence Lessig, a lawyer and Harvard professor filed a proceeding on August 22, 2013 against the Australian music label, Liberation for removing his lecture on YouTube. He delivered a lecture in South Korea, that was,  49-minutes long, containing 10 to 47 second home-made videos recorded along to the hit song Lisztomania by the French band Phoenix. YouTube took down Lessig’s lecture by request of Liberation but he also was threatened with legal action against him for damages, $160,000 of copyright infringement. He argued that his fair use of copyright materials was permitted under the current US legislation regarding the purpose of public lecture as to culture and the internet.[16] This case demonstrates that there was certain pain  experienced by a copyright owner (here, Liberation) when their copyright materials are used without permission. Also it clearly shows that certain pleasure was experienced by people who were given a chance to learn new communication methods in Lessig’s class.

Based on Bentham’s argument, since a higher degree of intensity, duration, certain and extent of pleasure of the fair use of copyright materials in classes is greater than the pain, the new provision of fair use  should be introduced.

Unlike Bentham, Mill was the more humane philosopher and proponent of utilitarianism He objected Bentham’s “greatest happiness” principle since he believed that Bentham’s utilitarianism ignored individual rights, human dignity and focused on quantity rather than quality of pleasure and pain. Bentham did not recognise distinctions among pleasures and said that pleasure is pleasure and pain is pain. Mill did not agree with Bentham and wrote an essay titled “On Liberty”. In the essay, Mill distinguished between higher pleasures and lower pleasures.[17] He acknowledged the different types of pleasures and proposed a simple test. [18]

 

By applying Mill’s argument in this case, the fundamental right of an individual copyright owner regarding the educational use of copyright materials should be taken into account and be adjusted depending on the quality of materials. This means that a higher quality of educational materials correlates with higher pleasures and a low quality of educational materials is related to lower pleasures. In this respect, it is necessary to distinguish the quality of educational copyright materials in practice. The owner of the copyright material should be reimbursed by organisations or communities according to the level of intellectual pleasure, not from the individual public. This is achieved by making the cost of education lower for students and teachers, and making easier for teachers to prepare lectures and study materials to facilitate teaching by teachers  in various learning institutions.

Unfortunately, there are no provisions for the fair use of educational copyright materials in classes in the current legislation. Therefore, the ALRC has proposed two law reforms which will ensure Australia’s copyright system is appropriate for teachers and education providers.

 


[1]  Kaustuv Basu , Two former Arizona State University professors say that the university violated copyright laws by using their online course material without permission (14 March 2012) <https://www.insidehighered.com/news/2012/03/14/former-asu-professors-threatens-litigation-over-online-course-ownership>.

[2] A large number of schools in South Korea, United Arab Emirate and India have replaced textbooks with electronic books. Each government invests a great amount of money to improve the digital environment for teachers and students. In India, the Indian government has paid government subsidies for students to purchase tablet pcs for their studies since 2010. Students only pay $35 to purchase a tablet pc instead of using textbooks.

[3] Education Services Australia, Copyright and the digital economy <http://www.esa.edu.au/australian-law-reform-commission-copyright-and-the-digital-economy>.

[4] Gyles v Wilcox (1740) 26 ALL ER 490.

[5]  Rich Stim, Educational uses of Non-coursepack  Materials (October 2010) <http://fairuse.stanford.edu/overview/academic-and-educational-permissions/non-coursepack/#what_is_an_educational_use>.

[6]  Education Services Australia, Copyright and the digital economy <http://www.esa.edu.au/australian-law-reform-commission-copyright-and-the-digital-economy>.

[7] How far off in the future is the pleasure or pain?

[8] What is the probability that the pleasure will lead to other pleasures?

[9] What is the probability that the pain will lead to other pains?

[10] Jeremy Bentham, The Works of Jeremy Bentham, Now First Collected: Under the Superintendence of His Executor, John Bowring ... (W. Tait, 1838) 563.

[11] Jeremy Bentham, “Tracts on Poor Laws and Pauper Management”, 1979, in John Bowring. Ed., The Works of Jeremy Bentham, vol.9 (New York: Russell & Russell, 1962), 369-439.

[12] Ibid 401.

[13] Michael Sandel, Justice (Penguin Books Limited, 2010) 33.

[14]  Australian Bureau of Statistics, School, Australia, 2016 (2 February 2017) <http://www.abs.gov.au/ausstats/abs@.nsf/mf/4221.0>.

[15] Fred Feldman, Pleasure and the Good Life: Concerning the Nature, Varieties, and Plausibility of Hedonism, (Clarendon Press, 2004) 120.

[16]  Jill Stark, Australian music label Liberation fights Harvard professor Lawrence Lessig over copyright (2 October 2013) <http://www.smh.com.au/digital-life/digital-life-news/australian-music-label-liberation-fights-harvard-professor-lawrence-lessig-over-copyright-20131002-2urvx.html>.

[17] Michael Sandel, Justice (Penguin Books Limited, 2010)  46-48.

[18] John Stuart Mill, Utilitarianism (1861), George  Sher, ed.(Hackett Publising, 1979), Chap 2.

 

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