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Format Shifting and the Copyright Amendment Act 2006
What am I allowed to do?            

What is format shifting?

“Format shifting” is a term used to describe copying content from one technological format to another. Some examples of format shifting include making a copy of a music CD to store on an IPod, or making a DVD copy of a VHS tape of a film.

Note: there has been lots of media attention recently about a new format shifting exception that was introduced in the Copyright Amendment Act 2006. This exception is a private and domestic use exception and does not apply to schools.

THE COPYRIGHT AMENDMENT ACT DOES NOT GIVE SCHOOLS A GENERAL RIGHT TO FORMAT SHIFT COPYRIGHT MATERIAL.

Schools have only very limited format shifting rights

Key points to note:

• SCHOOLS ARE NOT GENERALLY ALLOWED TO FORMAT SHIFT THEIR WHOLE LIBRARY OR COLLECTION

  (eg, from video to DVD or from video to a content management system like myclasses, Moodle or Clickview).

• SCHOOLS ARE NOT ALLOWED TO FORMAT SHIFT IF MAKING THE FORMAT SHIFT COPY CIRCUMVENTS AN ACCESS CONTROL TECHNOLOGICAL PROTECTION MEASURE

  Most commercial DVDs are protected by an access control technological protection measure (access control TPM). Schools are not permitted to circumvent this access control TPM to make a format shift copy (eg, by using software such as deCSS or DVD Shrink).
  
  For further information on Technological Protection Measures, see information sheet "Technological Protection Measures and the Copyright Amendment Act 2006".

• SCHOOLS NEED TO CHECK BEFORE FORMAT SHIFTING EACH INDIVIDUAL ITEM WHETHER IT IS POSSIBLE TO BUY THAT ITEM IN THE NEW FORMAT

  (eg, if you want to transfer two videos to DVD, you need to check whether you can buy each title in DVD before it is possible to make a DVD of that title).

• 'JUST IN CASE' FORMAT SHIFTING IS NOT PERMITTED

  Schools are not allowed to transfer resources eg, from video tape to a content management system 'just in case' it will be useful later on. Any format shifting needs to be done for the purpose of giving educational instruction in the near future.

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Are schools ever allowed to format shift?

Some limited format shifting is permitted under the new 'flexible dealings' exception (new section 200AB).

A school or TAFE is allowed to format shift copyright material (eg, a video to DVD or music tape to CD) if:

1. The original copy of the material is lawful. This means that the school bought it, or it is a genuine (non-pirate) copy of the material that was given to the school.
2. The copy is being made for the purpose of educational instruction (eg, a teacher needs to use the material in class or students need it to do homework).
3. It is not possible to buy the material in the new format within a reasonable time.
4. You do not use the format shifted copy in a way that would unreasonably prejudice the copyright owner (such as putting it on the Internet or giving students access to an electronic file that they could copy).
5. You do not remove or disable an access control TPM to make the format shifted copy.
   
   For further information on access control TPMs, see information sheet "Technological Protection Measures and the Copyright Amendment Act 2006".

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What do you mean by 'purpose of educational instruction'?

Your use will be for the purpose of educational instruction if you need to use the material for teaching (including remote teaching), preparation for teaching, preparing materials for students to use for homework or research tasks, or other uses that are in connection with your teaching.

For example, you can format shift a film on VHS that you can't buy on DVD if you want to play the film on the DVD player in the classroom for a lesson. You can't format shift just in case you might want to play the film at some point in the future.

What do you mean by 'buying the material in the new format'?

Consider the example of a teacher who wants to copy a film from VHS tape to a DVD to play in class. The VHS tape is the 'original copy' and the DVD disc would be the 'new format'. The teacher is only allowed to format shift from VHS to DVD if s/he cannot buy the DVD in a reasonable time.

In other words, for a commercial DVD such as 'The Castle' which is available in most DVD shops or for order online, it will not usually be possible to make a format shift copy of the film. If the school wants to own a copy in DVD format, the school will have to buy a DVD copy. For older educational resources (for example, older documentaries) it may not be possible to buy a DVD copy of the film, so the teacher would be able to format shift these types of resources.

Teachers should always check whether it is possible to buy the copyright material in the new format within a reasonable time before making a format shift copy.

What do you mean by 'reasonable time'?

A reasonable time will depend on the type of material being used. However, as a guide, you should think about the time it would take you to buy that material from a retailer (either from a shop or to have it shipped to you from an online retailer).

For films (on video or DVD) and music (CD) a reasonable time is two weeks. Even remote schools should be able to order a copy and have it posted to the school in two weeks.

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What do you mean by 'unreasonably prejudice'?

Your use will unreasonably prejudice the copyright owner if it hurts the copyright owner's economic or non-economic interests in the work you wish to format shift.

For example, if you want to format shift a film on video tape, you would unreasonably prejudice the copyright owner's interests in the film if you exposed the film to a high risk of piracy (eg, putting a copy of the film on the Internet or, possibly, if you handed out copies to students).

A good question to ask is "If I was a copyright owner, would I want someone to do this to my work?" If you answer no to that question, there is a good chance that you will be causing unreasonable prejudice to the copyright owner.

What is an access control technological protection measure?

You must never circumvent an access control TPM to make a format shift copy under s200AB.

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