Podcasts and Copyright
What are podcasts?
The word ‘podcasts’ is an amalgamation of the words ‘pod’ from iPod and ‘cast’ from broadcast. Podcasts originated as digital recordings of radio broadcasts that could be downloaded for personal MP3 players such as the Apple iPod. Podcasts now include images, text and video as well as audio, and can be downloaded as digital files from a website for a variety of devices, including personal computers, mobile phones and MP3/MP4 players. Podcasts that contain audio and visual materials are sometimes called ‘vodcasts’.
(Apple and iPod are trademarks of Apple Inc., registered in the US and other countries.)
The appeal of podcasting
‘Podcasting’ offers users both flexibility and portability. Once they have downloaded their chosen podcast, users can view/listen to it whenever and wherever they choose.
Generally, users download software from podcasting websites that allow them to sign up or subscribe (usually free of charge) to a particular podcast series. This means that, when connected to the internet, the software will search for new editions of the user’s favourite podcasts, download them to selected files on their computers and display these as new items on their desktops. Alternatively, users can use online podcast ‘directories’ (provided as part of podcasting software) to search for podcasts on particular topics and listen to them online before deciding to subscribe.
Classroom use: podcasts of programs broadcast on free-to-air television or radio
The statutory broadcast licence (Part VA) covers WA State Training Providers (STPs), allowing them to:
• copy programs from both free-to-air and subscription radio and television;
• copy podcasts from free-to-air radio and television programs available on the broadcaster’s website; and
• communicate the material to staff and students.
This means that podcasts of programs that have been previously broadcast on free-to-air radio and television, and made available on the broadcaster’s website, can be downloaded by staff for use in the classroom. There is a wide range of podcasts, listed by subject, available from the websites of broadcasters such as the ABC and SBS.
Teaching staff may copy and communicate (eg post on an intranet, provide access on a network or email) these podcasts as long as:
• the copying is carried out by an educational institution;
• it is for educational purposes; and
• it complies with the notice requirements.
The term ‘communicate’ allows activities such as posting on the internet or an intranet, sending material via email and providing access via a network or content management system. If a podcast is being made available on the internet or intranet, it should be password-protected and accessible only to staff or students from their STP.
Classroom use: podcasts of programs not broadcast on free-to-air television or radio
If a podcast is made available (for no fee) on the internet but is not from a program that has been previously broadcast on free-to-air television or radio, STPs may still be able to use it. This will depend on whether:
• the copyright owner has given permission; and
• a statutory exception applies, such as for flexible dealing, fair dealing or another statutory exception.
Some examples of such programs could be:
• a podcast available on the Discovery Channel website;
• a podcast (available on the ABC website) containing additional ‘web only’ content associated with a television program broadcast by the ABC; and
• a podcast available on a website other than a broadcaster’s website, such as Screen Australia.
Again, if a member of the teaching staff is making a podcast available on the internet or intranet, they should make sure it can only be accessed by staff and students from their STP.
Permission from copyright owner
Teaching staff will have permission to use a podcast where the website states that educational use is permitted. This may take the form of a notice stating that the material is:
• able to be used freely;
• free for school or educational use; and
• able to be used ‘in your organisation’.
Alternatively, teaching staff may obtain permission directly from the copyright owner to use a podcast. Permission can be sought by asking the person or organisation listed in the ‘Contact us’ section of the website.
Teaching staff use of podcasts under flexible dealing exceptions
Under flexible dealing exceptions, teaching staff can use podcasts for non-commercial teaching purposes if the use is not covered by another exception, or statutory or voluntary licence. To work out if an exception would be applicable, teaching staff must assess whether:
• the proposed use is narrow;
• it would conflict with a normal way the copyright owner exploits the material; and
• the use would unreasonably damage the interests of the copyright owner.
Student use of podcasts under fair dealing exceptions
A student may be able to use a podcast without the permission of the copyright owner if a fair dealing exception applies.
The fair dealing exceptions most relevant to students are:
• research or study, eg students downloading a podcast for their own research and study;
• criticism or review, eg students reviewing a podcast for an assignment (the source material, the author and copyright owner [if different] must be identified); and
• parody or satire, eg students using part of a podcast to include in a parody or satire (such as in another podcast)
. To rely on a fair dealing exception, students must ensure that the portion of the podcast used is reasonable, otherwise its use might not be deemed ‘fair’.
Creating podcasts
STPs may wish to produce their own podcasts in order to create assessment tasks, monitor student progress, facilitate self-paced and distance learning and assist students with disability. Furthermore, students may decide to create their own podcasts when they write scripts, present news, conduct interviews, play music and tell stories. However, there are copyright issues associated with creating podcasts.
Copyright issues: using third-party material
If teaching staff want to include third-party text or artistic works in a podcast, they should include the following notice with or on their podcast, eg in a pop-up box where the podcast is available on the STP’s intranet.
COMMONWEALTH OF AUSTRALIA Copyright Regulations 1969 WARNING
This material has been reproduced and communicated to you by or on behalf of [insert name of STP] pursuant to Part VB of the Copyright Act 1968 (the Act).
The material in this communication may be subject to copyright under the Act. Any further reproduction or communication of this material by you may be the subject of copyright protection under the Act.
Do not remove this notice.
If teaching staff want to include television or radio broadcasts in a podcast, the television and radio broadcast licence (Part VA) may be applicable. Teaching staff must include the following notice with or on their podcast.
COMMONWEALTH OF AUSTRALIA Copyright Regulations 1969 WARNING
This material has been reproduced and communicated to you by or on behalf of [insert name of STP] pursuant to Part VA of the Copyright Act 1968 (the Act).
The material in this communication may be subject to copyright under the Act. Any further reproduction or communication of this material by you may be the subject of copyright protection under the Act.
Do not remove this notice.
“A student may be able to use a podcast without the permission of the copyright owner if a fair dealing exception applies.”
Seeking permission
Generally, permission must be obtained for the use of music tracks or film owned by other parties.
Whilst it can be time consuming to obtain direct licences, copyright owners are often prepared to negotiate little or no payment for the use of their material when it is for not-for-profit educational use. For advice on whether a licence is needed, contact the intellectual property (IP) unit at [email protected].
STPs should always obtain the written consent of anyone performing or being interviewed in a podcast.
A sample letter to copyright owners can be obtained from the IP unit.
Permission to use copyright material for podcasts
There are different ways that copyright owners can give permission for their material to be included in a podcast. This will depend on the format and source of the copyright material, including content from the internet, a CD-ROM, CD, DVD, television or radio.
Note that if the source material is protected by a technological protection measure (TPM), for example on a commercial DVD or CD, under the provisions of the Copyright Act, STPs are not permitted to disable this measure to use the protected content.
If the copyright material is available from the internet, STPs have permission to use the material where the website states that educational use is permitted. For example, a notice may state that the material is able to ‘be used freely’, is ‘free for school or educational use’ or is able to ‘be used in your organisation’.
Another option for copyright material sourced from the internet is that an STP or member of its teaching staff may receive direct permission from the copyright owner to use the material. Permission may be obtained by asking the person or organisation listed in the ‘Contact us’ section of the website.
For all other sources of copyright material, STPs need to contact the copyright owner and obtain permission to use their content.
‘Free for education’ sources
An alternative source of material to feature in STP-produced podcasts are ‘free for education’ sources – or ‘open educational resources’ (OERs) – such as Creative Commons. Wherever possible, these materials should be used as third-party content. The beauty of material from these sources is that copyright permission has already been given by the creator/copyright owner for a range of uses that may include use in a podcast. Generally, there is a requirement to attribute (acknowledge) the copyright owner in the final product as part of the licence agreement.
Websites offering ‘free for education’ material include:
• Creative Commons creativecommons.org.au
• Wikimedia Commons commons.wikimedia.org
• OER Commons oercommons.org
• Freesound freesound.org.
Teaching the process of podcasting
The use of ‘free for education’ resources can be useful for STP staff teaching the process of podcasting. Some copyright-protected items, particularly specific musical recordings and film material, may be too expensive for STPs to use and may not be available from ‘free for education’ sources. In these instances, STPs should think about using free generic material; for instance, using a track featuring simple piano music may illustrate a teaching point just as well as a more expensive track by a well-known artist.
