There is no general “just in case” provision that allows an educational institution to make a backup copy of a CD that comes with a textbook. Such items should be viewed in the same way as tables and chairs – if something is lost or breaks, you buy another one.

There are, however, provisions in the Copyright Act for libraries under which, if something that has been in the collection is lost, stolen or damaged and is no longer commercially available, replacement copies may be made. If you are worried you may not be able to buy a replacement copy of the item if something happens to the one you’ve bought, buy two copies to begin with and put the second copy away safely.

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MP3 is just a format in which sounds are held, so the issue here is where the material on the MP3 came from.

There are no problems if the MP3s contain recordings taped from radio. Teachers can upload these under Part VA of the Copyright Act – the provisions administered by Screenrights. Teachers can also upload MP3s of broadcasts they’ve downloaded from a free-to-air broadcaster’s website, but check first whether the teacher had to agree to any terms and conditions on the website that might restrict this.

On the other hand, the MP3 might have been downloaded from a band website or purchased from an online music store. In the case of commercial recordings bought from a store such as iTunes, it’s likely that the teacher will be bound by terms and conditions that strictly limit what they can do with the recordings – in many cases, such recordings are sold strictly for personal use.

However, if the MP3 was downloaded for free from a band website, check what permissions the band may have given on the website. In some cases, the band might have licensed its music and recordings under a broad licence such as a Creative Commons licence, or it might have stated that files on the site may be used for non-commercial or educational use. Note, however, that band members can only give such licences if they own all the relevant copyrights – not only in the music and lyrics but also in the recording.

In some cases, the teacher may be able to upload recordings under the “special case” or “flexible dealing” provision in the the Act (section 200AB), but this is likely to be the exception rather than the rule, particularly where copies of the MP3 music files are commercially available or where the relevant copyright owner ordinarily licenses this kind of use. Section 200AB is also unlikely to be available if the terms and conditions associated with the MP3 files specifically prohibit uses such as uploading to intranets or specifically restrict the use of the MP3 to personal uses.

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There are no provisions in the Copyright Act that generally allow a school to migrate its collection of commercially produced cassettes into CD format. In some limited circumstances, however, a school may be able to do so.

For example, if a copy of the recording isn’t commercially available, the library provisions in the Act would allow you to make a replacement copy in CD format, but only if a particular cassette had been lost, stolen, or damaged, or if it had deteriorated. Note that you can’t copy just in case one of these things might happen, and that the check for commercial availability would require you to look at whether it is available commercially in any format, not just as a CD.

Secondly, you may be able to copy a cassette to a different format under the “special case”/”flexible dealing” provision in the Act (section 200AB). This may only apply, however, if you can identify that all of the following apply:

• the recording is needed for a particular course or for a specific borrower;

• there is some particular need to have the recording as a CD (for example, because the classroom or the borrower doesnt’ have a tape player, but does have a CD-player); and

• you can’t buy a copy in the format you need.

In our view, you’re more likely to come securely within the scope of the “special case”/”flexible dealing” provision if you keep the copy you’ve made in the new format for as short a time as possible.

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Assuming that the contract under which you bought the audio book doesn’t specifically permit you to make the multiple copies for students, you will usually need to contact the relevant publisher or producer to see whether it will give you permission.

In some rare cases, you may be able to rely on the “special case” or “flexible dealing” provision (section 200AB) to make the copies, but this is only likely to be the case where:

• the student needs to be able to listen to the relevant book as part of their course;

• the audio book is no longer commercially available; and

• the publisher doesn’t license multiple copying (contact them to find out).

If you do meet these provisos, you can make sure you are more securely within the parameters of section 200AB by giving the relevant student only one chapter at a time and by making sure you delete the MP3 version once it’s been used. If you need an MP3 version in the future for the same purpose, re-check for commercial availability in an iPod compatible format.

Also, in our view you should not rely on section 200AB if the terms and conditions under which you bought the audio book specifically prohibit making such copies.

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In this situation, the music would be reproduced into the Powerpoint, and then performed to the class when the powerpoint is shown.

Are these uses licensed by the copyright owner?

Check the copyright owner’s terms of use for the MP3file: the teacher’s use may be allowed by the terms of use.

Are these uses allowed under the Copyright Act?

If the institution is covered by a remuneration notice with Screenrights, the reproduction could be allowed under Part VA if the MP3 file is a recording, or a copy of a recording, made from a broadcast for educational purposes.

Otherwise, section 200AB could, in some cases, apply. Section 200AB is more likely to apply if the particular piece of music is necessary for the teaching outomes of the presentation and a licence is not available.

The performance of the music, by showing the PowerPoint presentation, would be allowed under section 28 of the Copyright Act.

AMCOS/ARIA agreement

Many educational institutions are covered by agreements with AMCOS and ARIA that allow certain uses of recorded music, such as recording school concerts. The agreements do not, however, apply to MP3 files.

Are these uses prohibited by a contract?

The teacher may be legally bound by a contract that prohibits this use. This is likely to be the case if the teacher has purchased the MP3 file as a download. Using the MP3 file in a PowerPoint for class may breach the contract, even if the use does not infringe copyright.

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If the recording is for students with a print disability or an intellectual disability, special provisions in the Copyright Act applying to institutions assisting people with a disability may be available to make the recording.

If the school cannot buy a copy of the novel in any form (including as a printed book or an audio book), then it may make an audio recording under Part VB, provided it meets all the requirements of Part VB.

If the novel is available for purchase in print, but not as an audio recording, the school may make an audio recording for the students with learning difficulties, under section 200AB. Section 200AB is likely to allow the school to retain the recording provided it is only made to be used for students with special needs while there is no commercially recording available.

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