The NCU Copyright Hour - AI and Copyright

National Copyright Unit
www.smartcopying.edu.au
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The NCU Copyright Hour
12 March 2024
Artificial Intelligence and
Copyright
Claudia Lewis and Alison Davis

12 March 2024
The Ministers’ Copyright Advisory Group (CAG), through the NCU, is responsible for
copyright policy and administration for the Australian school and TAFE sectors. This
involves:
● managing the obligations under the educational copyright licences
● providing copyright advice to schools and TAFEs
● advocating for better copyright laws on the school and TAFE sectors’ behalf
● educating the School and TAFE sectors regarding their copyright
responsibilities.
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12 March 2024
Smartcopying website
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• Practical and simple information sheets and FAQs
• Interactive teaching resources on copyright
• Smartcopying tips and information on Creative Commons and how to find
Creative Commons licensed resources
• Search the site for answers to your copyright questions

12 March 2024
Slides
• Slides available @ http://www.slideshare.net/nationalcopyrightunit/
• This work is licensed under a Creative Commons Attribution 4.0 International
Licence (unless otherwise noted) http://creativecommons.org/licenses/by/4.0/.
• Attribution: National Copyright Unit, Copyright Advisory Groups (Schools and TAFEs)
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12 March 2024
AI is changing teaching and learning. What are the key
copyright issues you need to know about when using AI
tools in education?
Artificial intelligence (AI) and
copyright
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Overview
1. What is AI?
• Overview of AI
• Current applications of AI
• How AI tools are
developed
2. Copyright and AI
• Relevant copyright basics
• Copyright issues around
AI
• Current legal questions
3. Using AI in education
• Copyright guide for using
AI in education
• Law reform
• Smartcopying tips
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12 March 2024
What is AI?
12 March 2024

12 March 2024
ChatGPT
What examples of AI are
you familiar with? DALL-E
Predictive Text
EdChat
(SA)
Social media
algorithms
Spell check
Search
algorithms
Siri/Alexa
Google Maps
Netflix
suggestions
EduChat
(NSW)
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12 March 2024
What is AI?
• AI is a broad category of technology that uses
computers to undertake tasks that would otherwise
require human intelligence.
• Schools and TAFEs are most commonly using a
specific type of AI called generative AI to create new
content or adapt existing content for educational
purposes.
"Artificial Intelligence & AI & Machine
Learning" by mikemacmarketing is
licensed under CC BY 2.0.
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12 March 2024
Education applications of AI
• Adapting resources to suit curriculum or syllabus outcomes
• Developing resources suited to specific learning levels or proficiencies
• Creating worksheets/activities in response to prompts
• Changing resources from one format to another (eg from summary into
questions and answers)
• Summarising key concepts and facts for students
• Preparing marking rubrics or lesson plans
• Translating material to/from English
• Adapting material so that it can be used by students with disabilities
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12 March 2024
Developing generative AI tools
Material is
sourced
Data is derived
from source
material
Data is
ingested into
algorithm
Algorithm
creates a model
to understand
the data
Model applies
understanding
to generate
outputs
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12 March 2024
Cat wearing a hat
“Cat” “wearing” “hat”
Cat wearing a chef hat
“Cat” “wearing” “chef hat”
Cat wearing a chef hat causes a fire
“Cat” “wearing” “chef hat” “fire”
Images generated using Canva
Magic Studio Image Generator
(DALL-E)
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Copyright and AI

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Copyright basics
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What does copyright protect?
Copyright is a bundle of rights that protects material
that is:
a) made by a human author
b) the result of effort (“sweat of the brow”)
c) not a copy of another existing work
d) reduced to material form (written down, recorded)
Copyright does not protect ideas, concepts, styles,
information or facts.
‘Kookaburra’ by Claudia Lewis is
licensed under CC BY 4.0
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12 March 2024
Who owns copyright?
• Generally, the person who created the work – the “author”.
• Works created by employees as part of their employment are generally owned by
the employer (under contract).
• Copyright can be jointly owned where 2 or more people contribute to the work.
• Only natural or legal persons can own copyright (people or companies).
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A copyright owner’s rights
A copyright owner has the exclusive right to:
a) copy
b) perform
c) communicate to the public
the copyright material.
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Copyright licence schemes
Some education uses of copyright material are covered by statutory or negotiated
licence schemes. These include:
• The Statutory Text and Artistic Works Licence (s 113P of the Copyright Act) permits
schools to copy and communicate text and artistic works for educational purposes,
provided the amount copied does not ‘unreasonably prejudice the legitimate
interests of the copyright owner’.
• The Schools Music Licence and the TAFE Music Licence allow schools/TAFEs to
copy and communicate musical works and sound recordings in certain
circumstances.
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12 March 2024
Exceptions
• The Copyright Act includes a range of “public interest” exceptions to copyright
infringement.
• Some are specific to schools/education: performing works in class, flexible dealing,
exam copying, disability access exceptions
• Other general exceptions: flexible dealing for research or study (applies to
student/academic use of works), criticism or review, parody or satire
• Whether an exception applies is assessed on a case-by-case basis and is subject
to specific requirements.
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Copyright issues for AI
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Copyright issues for AI
• AI technology is rapidly developing, and this presents exciting
opportunities for the education sector.
• However, copyright in this space is complex and there are a
number of legal uncertainties in both Australian and overseas
law.
• Copyright issues to do with AI are being debated and considered
across jurisdictions.
• The NCU has some guidelines and recommended approaches
when using AI tools in education while the copyright issues
remain unresolved.
https://smartcopying.edu.au/using-generative-ai-platforms-in-tafes/
https://smartcopying.edu.au/using-generative-ai-platforms-in-schools/
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AI tools have inputs and
outputs
Input side Output side
• Training data
• Training process itself
• User prompts
• Material input by a user into
the tool
Anything generated by the tool:
• New text works/ images/ films/
sound recordings
• Answers to question prompts
• Remixes of material input by a
human into the tool
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Copyright issues – inputs and outputs
On the input side:
• Does training generative AI tools infringe
copyright in existing works?
On the output side:
• Are outputs of generated by AI tools protected
by copyright?
• If so, who owns copyright in the output?
• Do outputs infringe copyright in existing works?
"Brockville Ontario - Canada - Philips Light Show -
365 days a year - Old Railway Tunnel" by Onasill -
Bill Badzo - 149 Million Views - Thank Y is marked
with Public Domain Mark 1.0.
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12 March 2024
Copyright issues – inputs
Does training generative AI tools infringe copyright in existing works?
• AI models need to be trained on enormous and wide-ranging collections of data.
This data is extracted from content usually sourced from the Internet, including text
works, artistic works, audio-visual content.
• AI models generally do not contain actual copies of copyright works.
• The initial gathering of works to generate training data might involve copying them.
For example, downloading copies of images or text works from the Internet.
• If so, this is a copyright activity and could be infringing if it is not covered by an
exception or licence, or is done without the copyright owner’s permission.
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Copyright issues - outputs
Do AI outputs infringe copyright?
• Until a Court decides this issue, this remains a grey area.
• Some outputs may infringe copyright, for example if an AI tool
directly reproduces material from its training data.
• Other outputs might not infringe copyright, for example:
- Where the output is the result of an AI tool applying knowledge
from its training data
- Outputs that record facts or mere information
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• AI tools can be trained on millions – if not billions - of individual datapoints
extracted from a large array of material (some in the public domain).
• Where AI tools have been trained on very large datasets and are responding to
novel prompts, it may be less likely that outputs would be considered infringing
copies of material that the model was trained on.
• It might be more accurate to characterise AI tools as “learning” from information in
their training data, and applying that knowledge to generate new outputs.
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A human learning information from a work and then repeating or applying it does not
involve copying the original work:
• a student reads a Spanish textbook, develops an understanding of Spanish
definitions and grammar, and writes a story in Spanish
• a teacher prepares a one-page learning resource which summarises a 2-hour film
the teacher has watched at least 20 times since it was added to the syllabus
• a student writes an essay on a famous novel that is a prescribed text this term, and
applies critical literary techniques they learned from an English textbook
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12 March 2024
It may be arguable that AI tools follow an analogous process
to human learning for copyright purposes:
• Spanish language material is included in ChatGPT’s
training data. ChatGPT applies Spanish definitions and
grammar to generate a story in Spanish
• ChatGPT summarises a film in a one-page learning
resource in response to a teacher’s prompt
• ChatGPT is prompted to generate an essay on a famous
novel, and applies critical literary techniques in its output
"Artificial Intelligence - Resembling
Human Brain" by deepakiqlect is
licensed under CC BY-SA 2.0.
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12 March 2024
Some outputs are facts not protected by copyright, so reproducing them would not
infringe copyright:
• Working out the area of a circle with a diameter of 10 metres (78.54 m2 to 2
decimal places)
• Finding out the elevation of Mount Kosciuszko (2,228 metres above sea level)
• Counting the number of words in Jane Austen’s Pride and Prejudice (around
120,000)
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Are outputs protected by copyright?
• For copyright to exist in a work in Australia, there needs to be a human author, and
a degree of human ingenuity or ‘independent intellectual effort’ in the creation of
that work.
• Advancements in technology now mean that AI platforms can create works which,
arguably, do not involve human intellectual effort.
• As the law currently stands in Australia, AI-created works will likely not attract the
same copyright protections as works created by human authors.
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12 March 2024
Are outputs protected by copyright?
Whether copyright will be found to subsist in the output of generative AI tools will
depend on a number of factors including:
• the type of AI platform used
• what human prompts are given to the platform
• the form of the final output.
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12 March 2024
Who owns copyright in outputs?
Many commercial AI tools’ Terms and Conditions assign copyright in outputs (to the
extent that copyright exists) to the user.
It could be argued that:
• schools/TAFEs or education departments/administering bodies own the copyright in
outputs generated when their employees use AI tools as part of their employment
• students would generally own outputs they generate using AI tools.
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Using AI in education

12 March 2024
Copyright guide for using AI
in education
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Developing your own AI tools
If developing an AI tool, for example as part of a class exercise, wherever possible
use training datasets drawn from material that:
• your school or TAFE, or department/ administering body owns the copyright in
• is in the Public Domain
• that your school or TAFE has permission to use in an AI tool
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12 March 2024
Using AI tools with existing
material
Only modify third-party works using AI if you have permission of the copyright owner, or
can rely on an exception or licence under the Copyright Act:
• Creative Commons material can be modified if the licence permits derivatives
• using third-party text or artistic works may be covered by the Statutory Text and Artistic
Works Licence
• other uses may be covered by an exception:
- adapting for students with a disability: Disability Access Exception
- creating exam questions or material for an examination: Exam Copying Exception
- other limited cases: Flexible Dealing Exception.
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12 March 2024
Using AI tools with existing material -
Statutory Text and Artistic Works
Licence
Teachers can copy and communicate text and artistic works for educational purposes as
long as the amount copied or communicated “does not unreasonably prejudice the
legitimate interests” of the copyright owner:
• not a ‘one size fits all’ approach.
• flexibility – you can copy and communicate the amount you need, where to do so
would cause no harm to the copyright owner.
• the ‘10% or one chapter rule’ is still a useful guide in making this assessment for many
text resources that are still commercially available.
Teachers can copy and communicate whole artistic works under the Statutory Text and
Artistic Works Licence.
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12 March 2024
Example: Using AI tools with existing
material - Statutory Text and Artistic
Works Licence
• An instructor wants to create a dot point summary of a
chapter of a nursing eBook to be included in a learning
resource that will be made available to students in the
course on a password-protected DTE.
• The instructor copies and pastes the chapter into ChatGPT
with the prompt “dot point summary of the following
chapter”.
• The instructor uses the summary generated by ChatGPT
as a base, changes some of the points ChatGPT has
included and adds some additional points.
Screenshot of ChatGPT 3.5 on
iOS
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12 March 2024
material - Statutory Text and Artistic
Works Licence
• A visual art teacher is teaching a course on early 20th
century art movements and their styles.
• To demonstrate key stylistic features of each movement
to students, the teacher prompts an AI tool to modify an
image of an artwork sourced from a textbook into
expressionist, modernist and cubist styles.
• The teacher includes those images in a worksheet that
they print and hand out to students in class for students
to match up the relevant movements to the
corresponding images.
“cubist cat” generated by
Canva Magic Studio
(DALL-E)
“modernist cat” generated by
Canva Magic Studio
(DALL-E)
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12 March 2024
The Copyright Act contains two free disability copying exceptions that schools and
TAFEs can rely on to make materials accessible for students with a disability:
1. use of copyright material by organisations assisting persons with a disability
(‘organisational disability exception’) and
2. fair dealing for the purpose of assisting persons with a disability (‘fair dealing
for disability exception’).
Both exceptions can be used by schools and TAFEs to assist students with a
disability, but the circumstances in which they apply differ.
Disability Access Exceptions
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Which exception applies?
Organisational Disability Exception Fair Dealing for Disability Exception
If you need to copy or format shift an
entire copyright work, it’s recommended
that you use the organisational disability
exception provided the material is not
commercially available.
Where you are copying an extract or
portion of a work for a disabled student,
you may be able to rely on the fair
dealing for disability exception. You can
rely on this exception regardless of
whether the material that your student
requires is commercially available.
Disability Access Exceptions
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12 March 2024
• This term, an English class is studying a novel as their prescribed text.
• One student in the class has a disability that affects their comprehension of the
novel. The teacher searches for an easy English version of the novel to purchase,
but none is available.
• The teacher inputs the text of the entire novel into ChatGPT and prompts it to
“convert this novel into easy English”, and prints the output for the student.
• Another student in the class has low vision. The teacher tries to find an audiobook
version of the novel for the student to listen to, but none is available.
• The teacher copies and pastes the text of the entire novel into a text to speech AI
tool, and emails the recording to the student.
material - Disability Access Exceptions
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Flexible Dealing (s 200AB)
• Section 200AB is a flexible exception that can be used by schools and TAFEs when no
other exception or licence applies.
• You must assess your proposed use on a case-by-case basis.
• The NCU has guidelines to ensure your use falls under section 200AB.
• Limited application to text and artistic works, but examples include:
- changing/adapting song lyrics when the changed/adapted lyrics are needed for
educational instruction
- making translations of works when you cannot purchase the translation and it is
needed for educational instruction.
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• An ancient history class is studying the Roman Empire this
term.
• The teacher is planning an in-class exercise where students will
act out key events in Roman history in groups to the class.
• The teacher decides to input chapters of an ancient history
textbook on the Roman Empire into ChatGPT to generate
scripts for the students to perform in class.
• The teacher prints out copies of each script for the relevant
groups to learn and perform.
"Julius Caesar" by wwarby is
licensed under CC BY 2.0.
material - Flexible Dealing (s 200AB)
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www.smartcopying.edu.au 45
https://smartcopying.edu.au/copying-for-exams-what-am-i-allowed-to-do-2/
Exam copying exception
• Teachers and administering bodies are allowed to copy and communicate
text and artistic works (as well as other works) for use in online and
hardcopy exams.
• The exception covers actual exams and assessments.
• The exception may cover ‘practice’ exams and assessments, needs to be
considered on a case by case basis.

12 March 2024
material - Exam copying exception
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• A TAFE instructor is developing an end of unit assessment for a counselling
course.
• The instructor asks ChatGPT to convert the unit’s core text into a series of
exam questions, and to provide a suggested marking rubric and sample
responses for each of the exam questions.
• The instructor also finds a useful counselling infographic online, and uses an
AI tool to remove the text from it for students to fill in the blanks in one
section of the exam.

12 March 2024
Using AI tools with existing material
When using AI platforms to modify existing third-party materials, you should:
1. only do so if an education exception or the Statutory Text and Artistic Works
Licence applies, or you have permission from the copyright owner
2. label the modified material as follows:
‘This version was generated using [insert name of AI tool] and has been copied/made
available to you under the educational provisions of the Copyright Act. Any further
reproduction or communication of this material by you may be the subject of copyright
protection under the Copyright Act. Do not remove this notice.’
3. ensure you comply with the attribution requirements of the generative AI tool.
4. only make the material available on a password-protected DTE to the students/staff
who need it, and not publish the material on public websites or social media.
12 March 2024 47

12 March 2024
Using AI tools with existing material
Wherever possible, when using AI tools to adapt existing material:
• use AI tools to remix or adapt material in which your school/TAFE or department/
administering body owns copyright.
• if using AI to modify Creative Commons material, ensure the relevant licence
permits Derivative Works and comply with the relevant licence terms. Material with
a “No Derivative Works” condition should not be used.
• keep a record of the prompts that you use to generate new works / modify existing
works, and the AI tool that you used, wherever practicable.
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Using AI to create new material
• Check the terms and conditions of the AI tool you are using to confirm if an
assignment or a licence to copyright in the output is given.
• Sometimes the terms and conditions may provide that copyright in the output is
licensed to the user under a Creative Commons licence or on other terms. Ensure
you comply with the terms of any applicable licence.
• If using students’ copyright protected prompts or works generated by students using
an AI tool for non-educational purposes, or publishing student AI-generated work
internally (eg on a DTE) or externally (eg on a public-facing website or social media
pages), the student’s consent will be required.
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12 March 2024
Example: Using AI to create new
material
• A physical education teacher is preparing a PowerPoint
presentation to support a class about physical activity.
• The teacher prompts ChatGPT to “create a fun and engaging
rap that promotes the importance of exercise and encourages
students in Year 3 to be physically active. Include references
to walking, throwing a ball, swimming, riding a bike.” The
teacher adds to and changes the rap to make it relevant for
their students.
• The teacher also prompts an AI tool to generate an image of a
“happy avocado playing tennis”.
“happy avocado playing tennis”
generated by Canva Magic Studio
(DALL-E)
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12 March 2024
Using AI to create new material
When using generative AI to create new works you should:
1. note the terms and conditions of the generative AI platform and whether they
assign copyright in the output to the user or only grant a licence
2. ensure the person who uses the platform to generate the work is employed by the
school and has created the work as part of their employment
3. label content created using AI tool as follows:
‘This work was generated using [insert name of AI tool]. Any copyright subsisting
in this work is owned by [INSERT TAFE/Dept of Education/Administering Body].’
4. where practicable, only use content generated by AI platforms internally within the
school or TAFE.
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Recap: education applications of AI
1. Adapting resources to suit curriculum or syllabus outcomes
2. Developing resources suited to specific learning levels or proficiencies
3. Creating worksheets/activities in response to prompts
4. Changing resources from one format to another (for example, from
summary into questions and answers)
5. Summarising key concepts and facts for students
6. Preparing marking rubrics or lesson plans
7. Translating material to/from English
8. Adapting material so that it can be used by students with disabilities
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12 March 2024
Resources
• Smartcopying’s Using Generative AI Platforms in Schools factsheet
• Australian Framework for Generative Artificial Intelligence (AI) in Schools
• ACARA’s new Curriculum connection for Artificial intelligence (AI)
• Federal Department of Industry, Science and Resources’ Artificial Intelligence (AI)
Ethics Framework
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Law reform
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12 March 2024
Law reform
• AI is an issue being considered at all levels of government from a range of perspectives
including copyright.
• The NCU, on behalf of CAG, is advocating on behalf of schools and TAFEs in a range
of consultations in respect of AI.
• Unlike other jurisdictions, Australia does not have a text or data mining exception that
may be relevant to developing AI tools.
• At the moment, uses of AI in education need to be fall within existing licences or
exceptions under the Copyright Act that were not designed to apply specifically to AI.
• The NCU is advocating for an approach to AI and copyright that makes it clear that
educators can use AI in education.
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12 March 2024
Smartcopying tips
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12 March 2024
Smartcopying tips
• Wherever possible, if you want to modify or adapt material using AI, use content
licensed under Creative Commons (CC) licenses without the “No Derivative
Works” condition.
• Label – always label the work as having been created by AI and attribute any works
that you are adapting using AI.
• Limit – ensure access to material that you have created or modified using AI is
limited to the relevant staff/students only.
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12 March 2024
More information
58
slideshare.net/nationalcopyrightunit
smartcopying@det.nsw.edu.au
02 7814 3855

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