INTRODUCTION
With the growth of digital resources such as the internet, protection of copyright material is an even more crucial part of a number of important activities and industries. In the education sector, universities (and university libraries in particular) are providing staff and students with resources via the internet for educational and research purposes. Digital technologies create new revenue streams for copyright owners by allowing protected material to be sold, licensed and distributed via new mediums.Footnote 1 However, a change in the way information is being accessed may be leading to changes in the balance between the rights of copyright owners and those of users.Footnote 2
Margaret Jackson
Marita Shelly
Generally, in Australia, access to and reproduction of, copyright material is governed by the Copyright Act 1968 (Cth) (the Copyright Act). Under copyright law, copyright owners of literary, dramatic or musical works are provided with exclusive rights to reproduce the work in material form, publish the work, perform the work in public, communicate the work to the public, make an adaption of the work and, for computer programs or sound recordings, commercially rent the computer program or sound recording.Footnote 3 However, there are also provisions within the Copyright Act that allow users of copyright material to reproduce and communicate copyright works without infringing the rights of copyright owners. The most applicable provisions for individual users and educational institutions are the fair dealing exceptions and the educational statutory licences, respectively.
Access to and use of electronic resources is also dealt with under contract law. In the higher education sector, universities enter into contracts with publishers or providers of aggregated resources on behalf of university libraries to provide staff and students with access to material such as academic journals, books, legal cases and opinions, research papers and theses in electronic format. These contracts can override the operation of the Copyright Act in respect of the use of electronic resources, particularly in the area of fair dealing.
This paper will not be presenting a position on the argument about whether it is right or wrong that contracts exclude or modify exceptions within the Act. Rather, the purpose is to examine whether university staff, could be potentially breaching the contractual terms and conditions of electronic resources when accessing, downloading and printing articlesFootnote 4 and other materials, for educational and research purposes.
Generally, to protect themselves from copyright breaches, Australian university academics rely on the fair dealing exception of research and study or the educational statutory licences within the Act when using electronic resources such as aggregated journal/periodical repositories or publisher websites. Academics would usually access material in electronic form without giving any consideration to the terms and conditions governing the provision of each electronic resource.
This paper examines the educational statutory licences and, in particular, the provisions related to electronic versions of copyright materials and fair dealing exceptions for the purpose of study and research. The paper then appraises several contracts for electronic resources provided to staff and students of RMIT University to ascertain if there is a difference between what is allowed under the Copyright Act compared with a contract for the provision of electronic resources. Based on the review of terms and conditions provided, the paper determines whether contract clauses allow the fair dealing exceptions and educational statutory licences to be relied on for teaching and research activities.
RIGHTS OF ACADEMICS TO COPY OR COMMUNICATE WORKS
There are two sections in the Copyright Act under which works can be reproduced and/or communicated in the university environment without the prior permission of the copyright owner. The first is the educational statutory licensing scheme for universities (discussed below in section a) and the second is fair dealing (discussed in section b).
a. Educational Provisions
Educational institutions such as universities are provided with educational statutory licensing scheme provisions (Part VA and VB) within the Copyright Act. These provisions allow universities to “provide access to and use of copyright materials to their staff and students at a reasonable cost”,Footnote 5 and enable copyright holders to receive remuneration for use of their copyright works via a collecting society.Footnote 6
Part VB allows multiple copies to be made by or on behalf of, an educational institution for educational purposesFootnote 7, provided that the institution has a current remuneration notice in force with a declared collecting agency such as the Copyright Agency Limited (CAL).Footnote 8 Similarly, Part VA allows educational institutions to copy from radio and television for educational purposes as long as a remuneration notice is in place with a declared collecting agency.Footnote 9 ‘Educational purpose’ is defined under the Act as occurring when “[a copy] is made or retained for use, or is used, in connection with a particular course of instruction provided by the institution or [a copy] made or retained for inclusion, or is included, in the collection of the institution's library”.Footnote 10
In 2000, to update the Act to accommodate electronic material, Division 2A was introduced into Part VB of the Act.Footnote 11 Sections 135ZMA to 135ZME relate to the reproduction and/or communication of works in electronic form by educational institutions. These sections of the Act can be relied on if the reproduction or communication of a work, including an article from a periodical publication, is made from an electronic form of the work.Footnote 12
Multiple reproductions and communications can be made from an electronic form of the work without infringing copyright if the amount copied or communicated is an insubstantial part of the work and the copying “or communication is carried out on the premises of an educational institution for the purpose of a course of study provided by” the institution.Footnote 13 Under s.135ZMB, an insubstantial part is no more than two pages or one per cent of the total number of pages of the work.
Section 135ZMC allows multiple copies and/or communication of periodical articles in electronic form of one article in a periodical publication.Footnote 14 Similar to s.135ZMB, the copying or communication must be undertaken by an educational institution, or on behalf of one, solely for the educational purposes of the educational institution, and a remuneration notice must be in force between a relevant collecting agency and the educational institution.Footnote 15
Multiple reproductions and communications of whole or a part of a work (not including periodical articles) is allowed under s.135ZMD if the copying or communication is undertaken by an educational institution, or on behalf of one, solely for the educational purposes of the educational institution, and a remuneration notice must be in force between a relevant collecting agency and the educational institution.Footnote 16 However, s.135ZMD states that if the work has been published separately, only a reasonable portion of work can be copied or communicated. Under s.10(2A) of the Act, a ‘reasonable portion’ for electronic forms of works means that no more than 10 percent of the number of words in the work can be copied or, if the work being copied is divided into chapters, the number of words copied may exceed 10 per cent of the total number of words, provided only one chapter is copied.Footnote 17
Section 135ZMDA covers the reproduction and communication by educational institutions of works within electronic anthologies.Footnote 18 One copy or communication of all or part of a work in an electronic anthology is allowed, if the page content within the anthology cannot be changed and the work comprises 15 or fewer pages. The copying or communication must be undertaken by an educational institution or on behalf of one, solely for the educational purposes of the educational institution and a remuneration notice must be in force between a relevant collecting agency and educational institution.Footnote 19
If the copying by academics and students does not fit into one of s.135ZMB, s.135ZMC, s.135ZMD or s.135ZMDA then it may be considered a copyright infringement, unless a defence of fair dealing can be claimed, or that access to the electronic resources is governed by a contract and that contract permits the copying or reproduction. The terms of such contracts are discussed in a later section.
b. Fair Dealing Exceptions
Individuals can use the fair dealing exceptions within the Copyright Act as a defence against a claim of copyright infringement. Sections 40 to 43Footnote 20 of the Act state that the use must be for the purpose of research or study, criticism or review, parody or satire, reporting news, judicial proceedings or professional advice by a lawyer, patent attorney or trademark attorney.Footnote 21 For universities, the research and study exception is the most relevant. Unlike the phrase ‘educational purpose’ discussed earlier, neither research nor study is defined within the Act. In the 1990 case of De Garis v Neville Jeffress Pidler Pty Ltd,Footnote 22 Beaumont J referred to the Macquarie Dictionary for the meaning of research and study. He found that research was defined as a diligent and systematic enquiry or investigation into a subject in order to discover facts or principlesFootnote 23, and that study was defined as including “the application of the mind [in] the acquisition of knowledge, as by reading, investigation or reflection”.Footnote 24
Generally, an academic writing a scholarly work such as a journal article or conference paper is considered to be undertaking research and most would consider the activity falling under the fair dealing exception of research and study. However, Ricketson and CreswellFootnote 25 would argue that a researcher can only rely on the fair dealing provisions while actually conducting a research enquiry or investigating a topic area and cannot do so when they are engaged in writing and publishing their research findings. In their opinion, only the former and not the latter activity falls within the scope of the dictionary meaning of research. Some Australian universities have taken the same approach as Ricketson and Creswell in defining research. For example, in the section on copyright and research activity in the Monash University copyright guide, it states that “a researcher can rely on … ‘fair dealing’ for the use of third party content during the actual process of conducting research”.Footnote 26 However “any publication or broad distribution of third party content embedded within research output may not be considered as ‘fair dealing’”.Footnote 27
Based on the definition of research used by Beaumont J in the De Garis v Neville Jeffress Pidler Pty Ltd Footnote 28 case and the interpretation of research by Ricketson and Crewell, research purpose relates to the activity of conducting a research enquiry or investigating a topic area, but not the dissemination of the research findings.
The Copyright Amendment (Digital Agenda) Act 2000 extended the fair dealing exceptions to works in electronic form and clarified what constitutes a reasonable portion in relation to the amount of a work that can be copied or communicated for the purpose of research or study.Footnote 29 Section 40(2) provides guidance as to what matters should be taken into consideration in determining whether a use of a work for research or study is a fair dealing. These matters include the purpose and the character of the dealing, the nature of the work, the possibilities of obtaining the work within a reasonable time at a commercial price, the effect of the use on the potential market or value of the work and the amount and substantiality of the part copied in relation to the whole work.Footnote 30 Australian courts will examine “how the reproduction was used, the type of work involved, whether the work is available at a reasonable price, whether the economic interests of the copyright holder have been damaged and the amount of work that was reproduced.”Footnote 31
In circumstances where the work being reproduced is an article in a periodical publication, s.40(3) of the Act states that the reproduction of a whole article is taken to be a fair dealing if the article is reproduced for the purpose of research or study.Footnote 32 For the purpose of s.40(3), an article must be a literary work or a dramatic or musical work and it must be a work in its own right as well as part of a larger compilation or collection (for example, as part of a periodical).Footnote 33 However, if the article is part of a database, the fair dealing exemption does not apply. It is necessary, then, to consider which electronic resources are considered databases. The issue of databases is discussed below in section d.
c. Other Jurisdictions
As US and UK companies are major providers of educational resources, in Australia, particularly in electronic format, it is worthwhile examining whether academics have similar rights to copy works in these jurisdictions. United States copyright law contains a range of specific fair use exceptions, similar to those in the Australian Act. However, the US ‘fair use’ exception in s.107 of the Copyright Act is broader than ‘fair dealing’ under the Australian Copyright Act. Section 107 provides as follows:Footnote 34
… the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
While this definition covers the four fair dealing uses contained in the Australian Act, the inclusion of the words ‘such as’ means that the four fair uses are provided as examples and are not the only uses accepted. What constitutes ‘fair use’ is thus left to the courts to assess. The courts have accepted that activities such as home taping of videos, the photocopying of scientific articles, and reverse engineering of computer programs can be fair use.Footnote 35
Under the US Copyright Act there are specific provisionsFootnote 36 provided to non-profit educational institutions, which allow for copying by libraries for archiving and preservation and for electronic copying for distance education programs. However, these sections are very narrow and restricted in application. As the US Copyright Act does not contain educational statutory exceptions or any sections explaining what is considered a reasonable portion of copying of a journal or anthology, the key defence to an allegation of copyright infringement under US law therefore, is fair use. Multiple copying for classroom use is specifically mentioned as an example of fair use, depending on the circumstances mentioned above.
The US Copyright Office publishes a set of educational fair use guidelines prepared by publishers and the academic community.Footnote 37 These guidelines deal with photocopying and apply inter alia to the reproduction of copyrighted works for teaching in educational institutions and by libraries for the purposes of research and study.Footnote 38 Unlike the Australian Copyright Act, the US Act does not define the meaning of ‘educational purpose’. However, educational institutions and non-profit organisations define ‘educational purposes’ as including “non-commercial instruction or curriculum-based teaching by educators to students at non-profit educational institutions, planned non-commercial study or investigation directed towards making a contribution to a field of knowledge, or presentation of research findings at non-commercial peer conferences workshops or seminars”.Footnote 39
This definition clearly indicates that educational purposes cover both research and study, including the dissemination of research findings, but not necessarily in written form.
The Guidelines state that it is reasonable for a teacher to copy a chapter from a book or an article from a periodical, if it is fewer than 2500 words or 10 per cent of the work, whichever is the smaller amount. While teachers can photocopy articles to hand out in class, the guidelines make clear that such copying cannot be used as an attempt to replace the use of textbooks within the course.Footnote 40
Similar to Australia, the UK has educational provisions within the Copyright Designs and Patents Act 1988.Footnote 41 However, ss 32 (1) and (2A) of the UK Copyright ActFootnote 42 exclude the copying of works for instruction via a reprographic process such as photocopying. Multiple copying for educational purposes requires a licence. Under this licence, which is issued and administered by the Copyright Licensing Agency (CLA),Footnote 43 an academic can copy “in any work, 5 per cent or one chapter, whichever is greater; in the case of a periodical, one article from any one issue; and in the case of a short story or poem not exceeding 10 pages in length, the whole of the short story or poem”.Footnote 44
The UK also has similar fair dealing provisions to Australia. Sections 29 to 30 of the Copyright Designs and Patents Act 1988 provides that fair dealing for the purposes of non-commercial research and private study and for criticism, review and news reporting, provided that it is accompanied by a sufficient acknowledgement. Legal advice is not included, nor is parody and satire.
d. Databases
1. What is a Database?
Online databases have changed the way that publishers provide materials to libraries and users, and the way that researchers, students and academics locate and access these materials. Online subscriptions now represent 60 percent of most university library collectionsFootnote 45 and many publishers are now providing the majority of their resources online. The fair dealing sections of the Copyright Act 1968 (Cth) allow an individual to copy a reasonable portionFootnote 46 of a published literary work in electronic form except if it is part of an electronic compilation such as a database. Footnote 47 This exclusion implies that no copying of materials held in a database is allowed. However, as noted earlier, staff in educational institutions are able to reproduce or communicate a work within an electronic anthology if the work occupies 15 or less pages of the anthology, the reproduction or communication is made by or on behalf of the institution, a remuneration notice is in place with a relevant collecting agency such as the Copyright Agency Limited and the reproduction or communication is made solely for the educational purposes of the institution.Footnote 48 It should be noted that the Copyright Act does not define the terms ‘electronic anthology’, ‘electronic compilation’ or ‘database’.
The Directive of the European Parliament and of the Council on the Legal Protection of Databases provides a useful guide to how to identify a database, as specified in s.40 of the Copyright Act. It also provides useful background information as many of the electronic resources used in university libraries are provided under terms and conditions that are not governed by Australian law. It is necessary, then, to understand how other jurisdictions deal with database protection. The European Court of Justice concluded that under the definition of article 1 §2 of the Directive, a database is “any collection of works, data or other materials [that can be separated] from one another without the value of their contents being affected”.Footnote 49 The collection must also be arranged in a manner that allows for the retrieval of each individual work.
2. Can the Electronic Resources in University Libraries be classified as Databases?
In Australia, the classification of electronic resources as databases or not, is essential to the application of reproducing and communicating works in electronic form. Sections 10(2A) and 40(5) of the Australian Copyright Act allow for reasonable portions of published literary and dramatic works in electronic form to be reproduced as long as the works are not computer programs or an electronic compilation such as a database.
Based on the interpretation of the definition of a database under the European Union Directive on the Legal Protection of Databases by the European Court of Justice, academic articles can be classified as independent works as they are capable of being separated from a periodical or a collection and maintaining their informative content or value. Electronic resources such as a periodical/journal repository or a publisher's website, are arranged systematically and the search functions provided, enable users to retrieve each item within the collection individually. However, it is not clear whether all works within each electronic resource would be classified as independent works.
If some works, data or other material within a particular electronic resource are interdependent, then the electronic resource would not be classified as a database and the fair dealing exception for the purpose of study or research could be relied on if the terms and conditions of the electronic resource allow it.
Section 40 does allow an individual to copy a reasonable portion of a non-database electronic resource and ss 10(2A) to (2C) clarify what constitutes a ‘reasonable portion’ in the electronic environment'.Footnote 50 As noted earlier, under s.10(2A), an individual can make a reproduction of a part of a published literary or dramatic work (other than a computer program or electronic compilation such as a database) that is in electronic form, if the number of words copied does not exceed 10 percent of the number of words in the work or, if the work is divided into chapters, the reproduction is of the whole or part of one chapter.Footnote 51 Because the types of electronic resources provided by publishers differ, one has to clarify the nature of the resource before deciding whether the Copyright Act applies or not. This is clearly an unsatisfactory situation for all parties, so the use of contracts to cover the terms of use for electronic resources could be the best solution
e. What is Allowed by the Copyright Act?
The two most relevant areas of the Copyright Act are the statutory educational licence and the fair dealing provision. The former indicates that university staff can reproduce or communicate multiple copies of works existing in electronic form without infringing copyright, as long as the amount copied or communicated is an insubstantial part of a workFootnote 52 or a reasonable portion of a work,Footnote 53 or, if it is a periodical article, the whole article, and the copying or communication is carried out on the premises of the university for educational purposes such as teaching. The latter indicates that, if the staff member is undertaking research or study, then the individual can reproduce a reasonable portionFootnote 54 of works that exist in electronic form, but this does not include multiple copies.
If the electronic resource is considered a database, then a whole article from an aggregated periodical/journal repository or a publisher's website is not allowed to be reproduced under the fair dealing exceptions. Rather, only a reasonable portion (for example, no more than 10 percent of the total number of words in the article) would be allowed under the Act; if the work is divided into chapters, the reproduction can be the whole or part of one chapter.
If university staff are using material held within electronic resources provided by publishers, staff may need to refer to the terms and conditions of each resource to ensure that their use of the material is allowable and not a breach of the contract entered into by the university and the electronic resource provider. Staff should not rely on educational statutory licences for copying and communicating for educational purposes and the fair dealing exceptions for research. These contracts, and their impact on the Copyright Act, are examined further below.
CONTRACTS
This section examines the role of contracts relating to the provision of electronic resources and their impact on both the educational statutory licences and fair dealing.
a. 2001 Copyright and Contract Review
The creation of new digital technologies has resulted in the regulation of copyright through the use of contracts rather than through the Copyright Act.Footnote 55 The Act permits this as it does not necessarily overrule the common law. While common law can be replaced or extinguished by statute, this intent should normally be stated in the relevant legislation. Only in s.47H does the ActFootnote 56 exclude the operation of contract law. Section 47H states that “an agreement, or a provision of an agreement, that excludes or limits, or has the effect of excluding or limiting, the operation of subsection 47B(3), or section 47C, 47D, 47E or 47F has no effect”.Footnote 57,Footnote 58
It would appear that traditional contract law principles apply to all other sections of the Act.
In response to the development of electronic commerce and related concerns over whether this growing area was ‘facilitating the use of contracts to set terms and conditions for access to and use of the copyright material’,Footnote 59 the Copyright Law Review Committee (CLRC) undertook a detailed review of the relationship between contract and copyright exceptions in 2001 to determine whether contracts were modifying or excluding the exclusive rights of copyright owners.Footnote 60 To date, this 2001 review is the most comprehensive study undertaken in the area of copyright and contracts in Australia.Footnote 61
The 2005 Fair Use and Other Copyright Exceptions issue paperFootnote 62 noted that the use of contracts considered by the CLRC in the earlier 2001 review were ‘relevant to the issue of possible new exceptions to meet the concerns about maintaining reasonable public access to copyright material in electronic form’.Footnote 63
The issue of copyright and contracts has not re-surfaced as a major issue for users, universities and the government. Since the 2001 Copyright Law Review Committee review on the relationship between contract and copyright exceptions,Footnote 64 however, the issue of “whether the fair [dealing] exceptions [and the educational statutory licences] survive contractual restrictions remains a point of contention”.Footnote 65
The UK has recently considered this question of contracts and copyright law.Footnote 66 The British Library in particular has argued strongly against contract law being used to override copyright law, stating in a press release that ‘contract must not undermine copyright and without addressing this issue many existing and new exceptions will simply be over-ridden by contract law’.Footnote 67 To overcome this issue, the British Library (using the EU Database Directive and the Irish, Belgian and Portuguese Copyright Act as references) recommended the following draft legislation.Footnote 68
Permitted Acts in Relation to Contracts
Where an act which would otherwise infringe copyright is permitted under this Act it is irrelevant whether or not there exists any term or condition in any agreement which purports to prohibit or restrict the act.
The British Library also undertook an analysis of 100 randomly selected contracts offered to it to determine the impact of the terms on copyright law. It examined seven specific areas set out below in Table 1.Footnote 69
Table 1 The British Library's Review of Contracts
Two of the areas of analysis are particularly relevant to this paper: fair dealing and exceptions. With Fair Dealing, just under half the contracts studied removed the right, in different ways, to rely on the defence of fair dealing under the Copyright Designs and Patents Act 1988. Fifteen did not make any reference to a right to print, and a third did not allow or were silent on downloading or copying material.Footnote 70
An examination of the exceptions from UK copyright law or copyright law in other jurisdictions, found that twenty-five contracts referred to copyright law, thirteen only to US law, eight to US and UK law, and four to both the US and applicable international law.
The British Library made no specific comments about its analysis and indicated that its purpose was merely illustrative of the type of contracts available.
b. Specific Terms and Conditions
This section examines some examples of the types of terms and conditions that Australian university libraries accept when providing staff and students access to electronic resources. It was beyond the scope of this paper to examine all terms and conditions of all the databases subscribed to by a university. In most cases, terms and conditions are not publicly available and database providers rely on universities to ensure that the terms are not breached by users. The authors asked the RMIT University Librarian for a selection of database provider contracts and received twelve examples.
The review of the twelve database provider contracts and discussion below, focuses on two areas that link back to the earlier examination of the rights of academics:
1. Under the contracts, are academics still able to rely on the defence of fair dealing in their research activities?, and
2. Are they able to undertake multiple copying for teaching purposes?
Table 2 provides a tabulated summary of the results from the review of the twelve database provider contracts.
Table 2 Review of the Contracts and Terms of Use of the Electronic Database Providers and Publishers
DISCUSSION OF TERMS
This brief overview of twelve electronic database provider contracts reveals that the governing laws vary, with only three being Australia, five US law, two UK law, and two not stating the applicable law. Only one specifically refers to the US fair use exception. The majority allowed the use of the databases for personal, educational and research purposes. This means that there is no need for academics to argue fair dealing or fair use in respect of browsing, copying or reproducing material from the databases for research or personal internal use. While none of the contracts define what was meant by research, if Australian academics rely on the dictionary definition of research as a systematic enquiry or investigation into a subject in order to discover facts or principles, then they would not breach the terms and conditions of the electronic resources.
Less than half of the agreements specifically allow for multiple copying for educational purposes, or allow for electronic linking for e-reserves. This prohibition is the case with one agreement governed by Australian law, four governed by US law, and two agreements not stating the governing law (but is presumed to be US law). In Australia, this means that the educational statutory licence provisions in the Copyright Act cannot be relied upon. The US law does not have a similar statutory licence, as multiple copying is considered fair use. Again, the contract would apply to override fair use.
Our final analysis is that, while the categories of who are authorised users were very similar for all twelve agreements, the permitted uses differed greatly and it was necessary to read each contract to determine what was permitted. It is not safe to assume that all contracts have the same terms and conditions.
CONCLUSION
This paper has examined whether university staff could potentially be in breach of the terms and conditions of electronic resources through undertaking teaching and research activities because they assume they are protected under the educational statutory licence provisions or the fair dealing exceptions in the Act. These activities include multiple copying or communication for teaching purposes, and downloading and printing articles for conducting a research enquiry or investigating a topic area.
The review of the contracts for the provision of electronic resources revealed that less than half allowed for multiple copying of resources for educational purposes. The right to make multiple copies is provided either because the contract specifically allows it, or the contract states that the Australian Copyright Act or fair use under US law applies. As the majority of the contracts reviewed did not allow multiple copying, potentially Australian academics are breaching the terms and conditions of the electronic resources being accessed for educational purposes.
If Australian academics are using material downloaded or printed from electronic resources for inclusion in research publications, then potentially they could be breaching the terms and conditions, as it could be argued that this does not fall within the dictionary meaning of research.
As it is not straightforward to find out the rights allowed under each contract, a larger review of contracts is needed to provide a clearer picture of whether electronic resources contracts do substantially exclude or modify exceptions available under the Act. What is clear is how difficult it is for universities to be aware of what each contract allows and how important it is to determine which law applies to the contract.
To conclude that Australian academics are breaching the terms and conditions of electronic resource, further interviews or surveys would need to be undertaken to determine how academics are actually using material from electronic resources. However, university staff and students need to be aware that terms and conditions for the use of electronic resources can differ from their rights as a user of copyright material under the Act.
To clarify the situation, terms and conditions need to define phrases such as ‘internal research’, ‘substantial portion’ and ‘unrelated third party’. There also needs to be increased awareness of the impact of contracts on both educational statutory licences and the fair dealing exceptions to ensure that universities and university staff (who are creators and users of copyright material) realise the potential risk of a loss of access to electronic resources or legal action being taken by electronic resource owners against the university and individuals for breach of contract.
