Copyright for interlibrary loans and document delivery 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

Who We Are ‘Copyright laws should advance the interests of society as a whole’. Australian Digital Alliance (ADA) Australian Libraries Copyright Committee (AL©C)

What is Copyright? © Copyright is automatic

Covers a wide range of materials…  Maps  Computer programs  Architectural plans  Even telephone directories The work doesn’t need to be “creative,” it’s also about the effort in gathering information or assembling the work.

The Copyright owner has the exclusive right to… Reproduce the work in ‘material form’ Publish the work Publicly perform the work Publicly communicate the work Make an adaptation of the work

Exceptions to copyright infringement No infringement where the use amounts to a fair dealing for the purpose of :  Research & Study  Criticism & Review  Professional Advice & Judicial proceedings  Reporting the News  Parody & Satire (NEW)

Research & study (Section 40) 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, need to consider a number of factors to decide if it’s fair…

Factors to consider…  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 on the potential market for/value of the work or adaptation  where only part of the work or adaptation is reproduced, the amount and substantiality of the part copied /taken in relation to the whole work or adaptation.

Fair dealing by librarians? De Garis v Neville Jeffress Pidler Pty Ltd(1990) 95 ALR 625

Libraries and Archives Exceptions (Part 3, Division 5 )  Liability free copying and communicating of works for libraries in certain defined circumstances

Reproducing & Communicating Works for Users for Research & Study: s49  A library or archives can copy published works held in its collection for a user’s research & study purposes.  Same “deemed fair” quantities as with fair dealing.  Declaration required…

Reproducing & Communicating Works for Users for Research & Study: s49 Declaration 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 If requesting more than a “reasonable portion”  the library is satisfied that it cannot be obtained within a reasonable time at an ordinary commercial price.

Reproducing & Communicating Works for Users for Research & Study: s49 Library can make/provide copies in electronic form:  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.

Reproducing & Communicating Works for Users for Research & Study:s49(5A)  If an article in a periodical, or a published work is acquired by the library in electronic form  The library can make this available online, within the library premises, in a way that does not allow the user to make an electronic reproduction of the work OR Communicate the article or work.

Inter-Library Loans (Section 50)  Necessary given Australia’s size and dispersed population “If information is not readily available in Australia, the progress of the country will be seriously impeded and this must ultimately react on the general standard of living in the community." The Franki Committee, 1976

Which libraries? Any library all or part of whose collection is accessible to members of the public directly or through interlibrary loans: s50(10) E.g. Austn Interlibrary Resource Sharing Directory:

This has changed since 2006 Copyright Amendments Before: library does not include a library that is conducted for the profit, direct or indirect, of an individual or individuals Now: Library all or part of whose collection is accessible to members of the public directly or through interlibrary loans Archives all or part of whose collection is accessible to members of the public

The Request: s50(1) A library can request from another library a copy of an article or a part of an article, contained in a periodical publication, or of the whole or a part of a published work, held in the collection of a library, for the purposes of: (1) including the reproduction in the collection of the library (2) to assist a Parliamentarian to perform his/her duties (3) for supply to a user under s.49

The Act of Copying: s50(2) The Library who has received the request can make the reproduction

Copying Done on Behalf of Requesting Library: s50(3) Supplying Library Not Liable

Immunity Also Provided to Requesting Library: s50(4) The copyright in a work is not infringed by: The reproduction or communication of the work if the work is supplied under the section 50 provisions

ss5: Regulations “The regulations may exclude the application of subsection (4) in such cases as are specified in the regulations”

Charge for Services Must Not Exceed Costs: s50(6)  Library is entitled to charge for the document supply, but maximum that can be charged is cost recovery fee.

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…

Copying for the collection 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 the initial reproduction has been lost destroyed or damaged.  Declaration must be retained

Copies made from Hard Copies: s50(7A) Automatically deemed fair if less than a “reasonable portion” is being reproduced or communicated. Reasonable portion Hardcopy = 10% of pages or 1 chapter Periodicals = 1 article (more than 1 if it relates to the same research or course of study)

Copies made from Hard Copies: s50(7A) If you copy more than ‘a reasonable portion’, this exception only applies if:  the purpose of the copying is to assist a Parliamentarian in his/her duties OR  the work cannot be obtained within a reasonable time at an ordinary commercial price & a declaration is made to this effect

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

Hardcopy vs. electronic  Copies made from works in hard copy are treated differently to copies made from works in electronic form …

Copies made from Works in Electronic Form: s50(7B) If the work that the supplying library copies is in electronic form, this exception only applies if:  the purpose of the copying is to assist a Parliamentarian in his/her duties OR  the work or article cannot be obtained in electronic form within a reasonable time at an ordinary commercial price Even if less than a reasonable portion is copied.

Copies made from Works in Electronic Form: s50(7B)  There is no ‘deemed fair’ amount when supplying from electronic format  Must always make a declaration setting out the particulars of the request, including the purpose for the request

The Declaration Statement that the authorised officer is satisfied that, within a reasonable time, at an ordinary commercial price: If reproducing less than a reasonable portion:  The portion can’t be obtained in electronic form, either separately or together with a reas. amount of other material Reasonable portion = 10% of words or 1 chapter

The Declaration If reproducing whole work or more than a reas. portion  The work can’t be obtained in electronic form If reproducing whole or part of an article  The article can’t be obtained on its own in electronic form

“reasonable time at an ordinary commercial price” :50(7BB) Factors to consider:  when the person requesting the copy needs it  whether the work can be obtained in electronic form within a reasonable time, at an ordinary commercial price  the time it would take to deliver the copy to the requesting person.

Supplying the work to the requesting library  Work can be supplied by copying and providing as a hardcopy  Can also be communicated electronically (eg , making available online)

Supplying Electronic Copies: s50(7C) The supplying library must destroy any reproduction made for the purposes of the supply. Applies whether the original copy is in electronic form or hardcopy form

Supplying articles: s50(8) When supplying articles for a user for their research & study:  library can only supply 2 or more periodical articles (or parts of articles) from the same publication IF  they were requested for the same research or course of study.

This has changed since the 2006 Copyright Amendments Before: “relating to the same subject matter” Now: “for the same research or course of study”

Penalty provisions  It is an offence to make a false or misleading declaration: s 203F  Must keep declarations, arranged chronologically for 4 years. Offences: ss 203A, 203D and 203G

Copyright and Contract Contract can Override

Questions? Laura Simes Executive Officer Australian Digital Alliance Copyright Adviser Australian Libraries’ Copyright Committee Ph: , Fax:

Post Script…  Crown Copyright  Section 183

45 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

46 ‘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

47 ‘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

48 S. 183 vs Library Exceptions & Fair Dealing Fair DealingLibrary Exceptions Crown Copyright - FREE - You need to pay for - Limited by fairness principles - Limited by provisions in s Unlimited *unpublished?- Applies to published works - Unpub’d works