1 Part I: Copyright Essentials for Libraries and archives This publication is licensed under the Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Australia License. To view a copy of this license, visit sa/2.5/au/ or send a letter to Creative Commons, 543 Howard Street, 5th Floor, San Francisco, California, 94105, USA

2 Australian Libraries Copyright Committee Laura Simes Copyright Adviser AL©C

3 What is copyright? Provides incentive for innovation and creativity by giving creators exclusive rights to exploit with works Restricts the ability of people and institutions to use © materials without remunerating owner or obtaining their permission Constant need to balance incentive to create with reasonable access for users of material

4 What is Copyright? © Copyright is automatic AL©C

5 What does copyright protect? “Works” Literary works Novels, poems Telephone directories, computer programs Dramatic works Scripts and screenplays for film, radio etc Artistic works Paintings, sculptures, drawings Maps, architectural plans Musical works Musical compositions; the sheet music notation AL©C

6 What makes something a “work”? Artistic value? Quality? NO Telstra Corporation Ltd v Desktop Marketing Systems 25 May 2001

7 What does copyright protect? “Subject matter other than works” Films Films, animations computer games Sound recordings Any recording of sound Radio & TV broadcasts Published editions Layout, typesetting AL©C

8 What rights? The copyright owner Has the exclusive right to use the © material in particular ways Can prevent other people from using their material in certain ways (eg from copying) Can allow other people to use their material in certain ways (eg by license) AL©C

9 What rights does the copyright holder have? “Works” Reproduce Publish Publicly perform Communicate to the public Make adaptation AL©C

10 What rights does the copyright holder have? “ Subject matter other than works” Sound recordings Copy Communicate to the public Cause to be heard in public Commercial rental arrangement in respect of the recording Films Copy Communicate to the public Cause to be seen in public Broadcasts Record the broadcast Communicate to the public Re-broadcast Published editions of works Right to make an exact reproduction of the edition. AL©C

11 Summary: When Copyright DOES NOT Apply If the material is not sufficiently ‘original’ When the copyright period has expired - material is in the ‘public domain’ and © does not apply When you want to make a use of the work which isn’t an exclusive right of the copyright holder

12 Moral Rights Rights of the creator Creator has the right: to be properly attributed for their work not to have their work falsely attributed not to have their work treated in a derogatory way. AL©C

13 Layers of Copyright… Example: CD Musical composition Lyrics Cover art Recording MUSICAL WORK LITERARY WORK ARTISTIC WORK SUBJECT MATTER OTHER THAN WORKS

14 Who owns copyright? Generally, the creator owns copyright: s35(2) Employment relationship: generally the employer owns © Joint creators: both own © Can be modified by agreement

15 How long does copyright last? Not published? Copyright can continue indefinitely Published? General rule = year creator died +70 AUSFTA extended term from 50 to 70 years 70 year term applies to material still in © on 1 January 2005 AL©C

16 How long does copyright last? EXAMPLES George Orwell ( ) Animal Farm Miles Franklin (1879 – 1954) My Brilliant Career Ethel Turner (1872 – 1958) Seven Little Australians AL©C

17 How long does copyright last? From 1 January 2005 Works = year creator died + 70 Subject matter other than works Films & sound recordings = year first published + 70 Published editions = year 1 st published + 25 Broadcast = year 1 st broadcast + 50 If government owns Copyright (crown copyright) Year 1 st published/year 1 st made + 50 years AL©C

18 Infringement Can occur in several ways: 1) By using a ‘substantial part’ of copyrighted material without permission AL©C

19 Infringement 2) By authorising someone else to use copyright material without permission Extent to which the person can prevent the infringement Relationship existing between the person and the person who did the infringing act (eg employee/employer); Did the person take reasonable steps to prevent or avoid the infringing act? Relevant industry codes of practice? AL©C

Section 39A Notice COMMONWEALTH OF AUSTRALIA Copyright Regulations 1969 WARNING Copyright owners are entitled to take legal action against persons who infringe their copyright. A reproduction of material that is protected by copyright may be a copyright infringement. Certain dealings with copyright will not constitute an infringement, including: …..

21 Infringement 3) By circumvention of copyright or access protection devices Technological protection measures (technological locks) Civil and criminal penalties for circumventing locks to copy / access a © work Broadened & strengthened under 2006 amendments Some exceptions (libraries) AL©C

22 The story so far…. Copyright duration, rights of control, materials that are included all put the © holder in a strong position What are the exceptions to these copyright rules?

23 Exceptions (1) Fair dealing (2) Library and archive exceptions AL©C

24 Fair dealing exceptions No infringement where the use amounts to fair dealing for the purpose of : Criticism and review Reporting the news Professional legal advice & judicial proceedings Parody & Satire (NEW) Research & study AL©C

25 Research & Study: s40 Certain quantities are ‘deemed’ fair: Hardcopy = 10% of pages or 1 chapter Electronic = 10 % of words or 1 chapter Periodicals = 1 article (more than 1 if it relates to the same research or course of study) If you wish to copy more, or are copying an artistic work… need to consider a number of factors to decide if it’s fair.

26 Factors to Consider Include… the purpose and character of the work the nature of the work or adaptation the possibility of obtaining the work within a reasonable time at an ordinary commercial price the effect of the dealing upon the potential market for, or value of, the work or adaptation; and in a case where part only of the work or adaptation is reproduced; the amount and substantiality of the part copied /taken in relation to the whole work or adaptation.

27 Library and archive exceptions Reproducing & Communicating Works to Users for Research & Study (s49) Separate to fair dealing which applies to the user. Applies to libraries & archives who have a collection accessible to the public, or who participate in interlibrary loans AL©C

28 Library and archive exceptions Reproducing & Communicating Works for Users for Research & Study A library/archives can copy a reasonable portion of published works held in its collection for a user’s research & study purposes. Applies to literary, dramatic, musical & artistic works, which have been published Does not apply to audiovisual material Can make and provide copies in electronic form

Library and archive exceptions What is a reasonable portion? Same as the “deemed fair” quantities under the fair dealing provision… Hardcopy = 10% of pages or 1 chapter Electronic = 10 % of words or 1 chapter Periodicals = 1 article (more than 1 if it relates to the same research or course of study)

30 Declaration Required User must make a request and a declaration in writing (except in the case of long distance users), that: the reproduction is required for research or study that it won’t be used for any other purpose that it has not been previously supplied Library must retain records of these declarations for 4 years.

31 The library’s officer must be satisfied that: The published work being supplied cannot be obtained within a reasonable time at an ordinary commercial price (don’t have to consider 2 nd hand copies) The person making the request is the person who will be receiving the material The declaration that has been provided is not untrue in any way.

32 Library and archive exceptions Limitations to s49 If supplying more than a ‘reasonable portion’ the library must first consider a number of factors (eg what kind or work it is, whether the work is commercially available). If work is supplied electronically, the library must attach a copyright warning notice AND must destroy any electronic copies made during the process of providing the copy as soon as practicable

34 Library and archive exceptions Document delivery (s50) Libraries & archives can reproduce & communicate articles and works to another library : to supply a user under s 49; for inclusion in the other library’s collection; or to assist a member of parliament.

Library and archive exceptions Copying for the collection: s50(7) Copies made for the purpose of inclusion in a library’s collection can only be made once, unless the initial copy was lost, damaged or destroyed In this case, the requesting library immunity does not apply unless a declaration to this effect is made

36 Document delivery (s50) limitations In general, there are the same limitations depending on how much is requested, and then, if more than a reasonable portion, whether the work is commercially available Generally, the same rules for reasonable portion as before…. 10% or 1 chapter, 1 article or more if relating to the same research or course of study….

Library and archive exceptions Points to note: if copying to assist a parliamentarian in their duty, don’t have to worry about reasonable portion or check if commercially available. If supplying a document that is originally in electronic form – you must always ask if it’s commercially available (ie there is no automatic reasonable portion)

The declaration As soon as practicable after the request is made an authorised officer must make a declaration: Setting out the particulars of the request, including the purpose for the request AND Stating that after reasonable investigation, the authorised officer is satisfied that a copy of the work can’t be obtained within a reasonable time, at an ordinary commercial price

39 Library and archive exceptions Reproduction & Communication of Unpublished Works 50 years after the year the creator died: If library or archives has an unpublished literary, dramatic or musical work, photograph or engraving, or recording or film The library can reproduce or communicate the work to a user for the purpose of research or study Can be published in limited circumstances - when you don’t know who the owner, you must put a notice in the Government Gazette.

40 Library and archive exceptions Reproducing works for preservation purposes (s51A) To preserve manuscripts or original artistic works against loss, damage, or deterioration or to provide a copy for research at another library or archives To replace a published work that has been damaged or deteriorated, lost or stolen* For ‘administrative purposes’ *Subject to the ‘commercial availability’ test

41 Library and archive exceptions Preservation provision for ‘key cultural institutions’ (ss51B, 110BA & 112AA) (NEW) Allows ‘key cultural institutions’ to make up to 3 copies from the work for the purpose of preserving against loss or deterioration.

42 Library and archive exceptions (NEW) Flexible dealing exception: s 200AB Threshold requirements: No other exceptions in the Copyright Act apply Use by or on behalf of a body administering a library or archives The intended use is for the purpose of maintaining or operating the library or archives The intended use is not “partly for the purpose of the body obtaining a commercial advantage or profit”

43 Library and archive exceptions 3 step test The use: 1) amounts to a special case 2) does not conflict with a normal exploitation of the material 3) does not unreasonably prejudice the legitimate interests of the copyright holder.

44 Special Provision for the Crown: s183 Who? Government departments, agencies, and those authorised by Government to do something for the services of the Crown. What does this mean? - These bodies are exempt from infringement. - Don’t need to ask permission in advance BUT must notify the copyright owner afterwards unless contrary to the public interest - Not a free exception

45 ‘For the services of the Crown’ Traditionally activities of libraries/galleries etc not considered Governmental Little case law: House of Lords decision in Pfizer v Ministry of Health “supply of medicine to the national health service hospitals for use in the treatment of patients is ‘for the services of the Crown’ (Re Patent law application). Bowen CJ thought it possible this extends to services provided by the Crown or its servants to members of the public

46 ‘For the services of the Crown’ cont. Many cultural institutions mandated by Statute to preserve & provide access to the national collection, strengthens Bowen CJ interpretation? Limitations of s.183 Must ‘as soon as possible unless contrary to the public interest’ inform the copyright owner Educational uses for educational institutions specifically excluded

47 S. 183 vs Library Exceptions & Fair Dealing Fair DealingLibrary ExceptionsCrown Copyright - FREE - FREE- You need to pay for - Limited by - Limited by provisions- Unlimited fairness principlesin s *unpublished?- Applies to published - Unpub’d worksworks

48 Special provision for educational institutions Statutory Licenses - Parts VA & VB Copyright Act Part VA: License for the copying and communicating of broadcasts (TV, radio, cable, satellite). License managed by Screenrights Part VB: License for the copying and communication works (hard copy & electronic) by educational institutions. License managed by the Copyright Agency Limited

49 Statutory Licenses - Parts VA & VB of the Copyright Act Some General Points: Allows educational institutions to use copyright material for educational purposes only. Not exceptions but rather a system for remuneration for use of copyrighted material. If an exception applies, or if you have permission from the copyright holder you do not need to use the statutory licenses.

50 Part VA of the Copyright Act Allows educational institutions to copy audio- visual off-air broadcast material which has been made available online by the broadcaster (eg TV programs, podcasts). No limitations on amounts that can be copied Labelling requirements for copied items When communicated, copyright warning notice required

51 Part VB of the Copyright Act Allows educational institutions to make as many copies as needed BUT the amount is limited: 10% of books and published works 10% (or 1 chapter) of electronic literary, dramatic or musical works

52 Part VB of the Copyright Act cont. The whole or part of an article contained in a periodical publication. The whole or part of 2 or more articles can only be copied if they relate to the same subject matter Artistic works can only be copied if they accompany other literary/dramatic works OR if they are not separately published.

53 Statutory Licenses (Parts VA & VB of the Copyright Act) Exceptions: Where works are not ‘separately published’, copies can be made of the whole or part of the work; Unavailable works: The whole or part of a work can be copied if the work can’t be obtained within a reasonable time at an ordinary commercial price. Course Packs: Check your institution’s guidelines.

54 Statutory Licenses (Parts VA & VB of the Copyright Act) Insubstantial Portions: Educational institutions can communicate an ‘insubstantial portion’ for free, i.e. 1%, without having to use the statutory licenses. Does not apply to musical or artistic works, and can’t copy another insubstantial portion from the same work within 14 days. Must be done within institutional premises, for educational purposes.

55 Statutory Licenses (Parts VA & VB of the Copyright Act) Formalities Universities who opt in to the statutory license must give Screenrights and/ or CAL a ‘remuneration notice’ undertaking to pay equitable remuneration for copying done. The notice must state the type of assessment method the institution wants to adopt, ie records system, sampling system or electronic use system.

56 Contract v Copyright Act Contract can override the Copyright Act. Check license agreements This may give you more or less rights than the Copyright Act provides.

57 Part II: Amendments to the Copyright Act 1968 New ‘Fair Dealing’ Exception Exceptions for libraries Additional provisions relating to Technological Protection Measures (TPMs) New Consumer Exceptions New Enforcement Regime AL©C

58 Conclusion Some questions to ask when thinking about Copyright issues: Does the use come under the exclusive rights of the owner? Is the work still in copyright? Does an exception apply? Do you have a licence that deals with the intended use?

59 Questions? Laura Simes Copyright Adviser Australian Libraries’ Copyright Committee Executive Officer Australian Digital Alliance p: | e: AL©C