Recording the concert

A school that is covered by the AMCOS/ARIA licence can record a concert for educational purposes. The school can distribute the recording to its students to assist them in class or as a commemorative recording of a performance (to be played at home or at school only, not in public).

You also need the consent of all the performers.

Posting the recording to YouTube

The AMCOS/ARIA licence does not allow schools to post a recording of a concert to YouTube.

If the recording is only of live performances of music in the public domain, you do not need a copyright clearance for the music.

If all or some of the music performed is still in copyright, you need a copyright clearance for the posting from the music publisher. If any recorded music was played at the concert, and this is included in the recording of the concert, you will also need a clearance from the record company. Either or both of these clearances may be difficult to get.

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There are three legal issues: infringement of copyright, breach of contract, and circumvention of a technological protection measure.

Copyright: Section 200AB of the Copyright Act can allow an educational institution to download a YouTube video without infringing copyright. The criteria for section 200AB are complex, but they are more likely to apply if:

• a copy of the video is not available for sale;

• a copy is not available under a licence (including an off-air copy made under Part VA);

• you need the video for a particular class;

• you use no more than is required for that class;

• your institution is not receiving any commercial benefit from the use;

• the video does not infringe copyright; and

• you delete the copy when it is no longer needed for the class.

Section 200AB is unlikely to apply if you can get the video from another source (such as a resource centre licensed under Part VA or a licensed download).

Contract: YouTube’s Terms of Use prohibit downloading videos from the YouTube site. You can get access to the content on YouTube's website, however, without looking at the Terms of Use. If you are not aware of the Terms of Use, and have not accepted them, then they are unlikely to be legally binding on you. If, on the other hand, you have accepted the Terms of Use – for example, by signing up – then you will be covered by a contract with YouTube and downloading videos would appear to breach that contract.

TPM circumvention: We understand that downloading a YouTube video requires circumvention of a technological protection measure (TPM) intended to prevent copying of the video. While circumventing such a TPM is not prohibited by the Copyright Act (provided the measure does not also control access to the content), making a circumvention device for someone else, and/or supplying a circumvention device or service is prohibited by the Copyright Act.

There will soon be information about YouTube on the Smartcopying website.

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Legally, anyone who does something that infringes copyright is liable. Someone who instructs someone else to do something that infringes copyright may also be liable, as may the organisation that employs them.

In practice, a copyright owner is more likely to sue the organisation in which the infringements are taking place than the individual employees involved.

To protect both yourself and the organisation in which you are working, however, if you are asked to make copies that you believe will infringe copyright, consider the following options:

• refer to any relevant in-house guidelines you have that can confirm in writing that you are correct in your view;

• seek advice or assistance from your immediate supervisor or manager; and

• (if available) seek advice or assistance from the copyright adviser working within your organisation.

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A teacher may infringe copyright if he or she authorises a student to make an infringing copy. Authorising an infringement may include directing or suggesting that a student copy material where that copying is an infringement because, for example, it falls outside the scope of the research or study exception or the educational copying licences.

Generally, a teacher will not be liable for infringing copies made by a student on copying equipment (including computers) in a library of the educational institution, provided that the prescribed warning notice is placed near the machine. It is a good idea to have similar notices near copying equipment throughout the institution.

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Where copyright is infringed, the copyright owner generally has the right to bring an action against the infringer to recover damages or an account of profits. Damages is a sum of money intended to compensate the copyright owner for money lost, or spent, in respect of the infringement, and will vary with the circumstances. An account of profits is the profit made by the infringer in selling the infringing copies.

There are also penalties for not co-operating with inspections of premises by representatives of CAL and Screenrights.

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The “anthology rule” (which allows you to copy all of a literary or dramatic work in an anthology if it’s no more than 15 pages long) does apply to material on the internet, but you need to take care how you apply it.

You still need to be able to identify an “anthology” before you can apply the rule, and in our view it’s unlikely you could apply the rule to a website generally or to a collection of different pages on a website. In practical terms, the rule is likely to be available where you have, for example, speeches or essays or poems or short stories and so on all contained in the one file, such as a pdf or Word file.

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