1. Tom Joyce and Alicia Dodemont The University of Queensland Library
Copyright and music
Tom Joyce and Alicia Dodemont
The University of Queensland Library

2. Music occupies a busy intersection – while technology has dramatically reshaped the production, distribution and ‘monetisation’ of music for rights-holders, that same technology enables users, whether they be individuals, libraries or cultural and educational institutions, to ‘do things’ to music that were inconceivable even a generation ago – format changing, preservation, remote streaming, etc.
What we end up with is not so much an orderly intersection as an ongoing collision between rights-holders and users.
In the face of well-resourced publishers – who’ve shown an inclination to aggressively assert their interests – what is to be done?

3. Copyright is a creature of technology and cannot escape its disruptive effects. Legislatures and courts in Australia and elsewhere will continue to grapple with the “challenge of the new”, and those laws – black letter law and case law – will be integral parts of the changing copyright landscape that libraries, archives and cultural and educational institutions, will have to navigate.
But, professionals in those institutions must pay particular heed to the evolving practices and norms of their colleagues here and overseas, not to supplant the law, but to inform their actions when navigating the inevitable gaps, lags and inconsistencies in an area of law that cannot hope to keep pace with the breathtaking pace of technological change.
These are, in short, the opportunities and challenges of the new.

4. What’s not to be done is look to legislative change to clear up gaps and uncertainties in the law – whatever we as users or institutional custodians wish to do in relation to music must be done using the pretty inadequate toolbox we have at our disposal today.
There is no fair use exception coming to the rescue – not now, not five years, quite possibly, never. A “transformative use” of a musical work will be a live concept on the other side of the Pacific, but not this one.
Serious copyright reform within our current legal architecture – i.e. expanding fair dealing rights – will happen, but not anytime soon. It took Canada more than a decade of hard grind to get its Copyright Modernization Act in 2012.

5. There’s no reason to despair – we just need to accept that we have to make the most of the tools available to us, not wait around for something better.
Those tools sum up in large part the problems with copyright and music as many users and institutions find them:
Orphan works – with enabling technologies, there are many examples of where musical works in deteriorating condition and obsolete formats – but still in copyright – can be protected, preserved and – possibly – made available to the public, but there is no identifiable or ascertainable copyright owner.
There is no legislation permitting an ‘orphan work’ analysis to be the basis for ‘overriding’ the need for copyright permission, but applying orphan work norms and be both safe and effective.

6. IFLA, the International Federation of Library Associations, in its “Statement on Orphan Works”, recognised the existence of evolving norms and the role of “diligent search” in enlivening action by libraries and other cultural institutions. [26]
NSLA, National and State Libraries Australasia, also identified some important issues in its 2011 “Position Statement on reasonable search for orphan works”. Noting that a “reasonable search” was an essential step to be undertaken before an orphan work is used, it then went on to summarise what that might look like in practice:
“a reasonable search will involve a continuum of effort ranging from minimal through to an extensive or extraordinary search. On this continuum, a greater level of resources and professional expertise will be required to locate the copyright holder of recent and/or works created by professionals as these searches have a higher likelihood of success. Prominent use of a work or a use that would be difficult to rescind or take down will also require greater search efforts.” [25]

7. “Quantifying the search effort will be dependent, but not limited to, criteria such as the amount of information on or about the work that is initially available, the age and uniqueness of the work. Use of sampling in certain circumstances (such as the digitisation of very old material that was not produced commercially such as diaries, letters etc.) could be used to meet the criteria of a reasonable search.” [25]
The Australian Law Reform Commission noted the existence of orphan work norms and – in the absence of fair use – noted that explicit legislated limitation of damages for good faith efforts at applying orphan work analyses was highly desirable. [27]
Should we have legislative enshrining of orphan work protection? Yes. Will we get it in the next 10 years? Probably not. Should we master the orphan work analysis and apply it in our workplaces? Absolutely. Is there risk? Yes, but with common sense it’s nothing out of the ordinary.

8. Which brings us to a legislative provision – a small ‘gift’ in 2006 – that many would like to give back. Should we? No. Can it be fixed? Yes, but it won’t be. Should we use it? Yes. Do we need – as best we can – to master it? Yes. Do we need to carefully examine evolving practices and norms once again? Yes.

9. Section 200AB Are there any other copyright exceptions available?
Is the material being used for a set purpose?
Is the use non-commercial?
Does the use conflict with the normal exploitation of the work?
Will the use unreasonably prejudice the copyright owner?
Is the use a special case?

10. A music student requests from the library a copy of an audio recording of a piece they are studying.
This example is adapted from and the Flexible Dealing Handbook.
Are there any other copyright exceptions available?
Is the material being used for a set purpose?
Is the use non-commercial
Does the use conflict with the normal exploitation of the work?
Will the use unreasonably prejudice the copyright owner?
Is the use a special case?

11. 1. Are there any other copyright exceptions available?
No, not that relate to copying audio materials.
Is the material being used for a set purpose?
The Flexible Dealing Handbook notes that sections 49 and 50 are doc del provisions but that they do not relate to copying audio materials. There are no other exceptions that will apply (p.21).
Supplying library users with access to materials is a common function of a library.
Is the use non-commercial?
Any charge made for the copy should only be for cost-recovery.

12. Does the use conflict with the normal exploitation of the work?
If the material is not available for purchase, is rare or is no longer sold by distributor, this is not likely to be interfering with the normal exploitation of the work.
Will the use unreasonably prejudice the copyright owner?
No, attribution in the copy would address the moral rights of the author. Other measures to minimise misuse – only copying the amount needed or using a streaming function instead.
Is the use a special case?
The use is limited appropriately ‘in a qualitative and quantitative sense’.
NOTE: Cannot rely on this exception if a Technological Protection Measure (TPM) is present.

13. A university music library has a specialist collection of concert ephemera dating from 1860 to 2013 and wishes to make it available electronically. A substantial portion of the collection are orphaned works.
This example is adapted from the Flexible Dealing Handbook (p25) and

14. 1. Are there any other copyright exceptions available?
No, this is not a situation of preservation (the materials are not damaged or deteriorating) it is a wish to modernise and expand the reach of the collection.
Is the material being used for a set purpose?
The proposal here relates to the library function, rather than the educational function of the library. The function of the library – increasing availability of materials for users, is met here.
Is the use non-commercial?
The library should not be charging for access.

15. Does the use conflict with the normal exploitation of the work?
The materials are mostly orphaned works. Also, the ephemera is not commercially valuable – the commercial intention was not originally for the actual ephemera, but the event this material was associated with.
Will the use unreasonably prejudice the copyright owner?
The library should still take some steps to ensure the material is used properly (despite being mostly orphaned works) – requiring users (by declaration) to only use the materials in compliance with fair dealing copyright exceptions is one such method.
Is the use a special case?
Yes, measures have been taken to limit access and use. Also, the materials are orphaned works and could not be used but for digitisation.

16. A music library wants to digitise parts of its collection that are not stored onsite (mainly scores). The public will be able to access the works through computers onsite or via the internet.
This example is adapted from the Flexible Dealing Handbook (p26).

17. The library should check whether the materials are to be reprinted.
It will depend on the material within the collection – some of the scores will likely be commercially available (possibly in digital format).
Making these scores available online would conflict with the normal revenue of the copyright holder.
There are, however, likely to be rare and out-of-print scores which may be eligible under s200AB.
The library should check whether the materials are to be reprinted.
Given the broad nature of this scenario – makes sense to analyse it in smaller ‘chunks’.
This example is adapted from the Flexible Dealing Handbook (p26).

18. Questions?

19. References
environment
pyright_for_teaching pdf
Simes, Laura and National Library of Australia (issuing body.) & Australian Digital Alliance (issuing body.) & Australian Libraries Copyright Committee (issuing body.) et al. A user's guide to the flexible dealing provision for libraries, educational institutions and cultural institutions: section 200AB of the copyright act 1968 (Cth) (2008) Kingston, ACT Australian Libraries Copyright Committee and the Australian Digital Alliance with the assistance of the National Library of Australia.

20. Alexander, Isabella and Fraser, Michael, ‘Copyright reform in Australia: asking the right questions‘ Journal of media law, Jul 2014, Vol.6(1), pp.8-20.
‘Digital Access: The Impact of Copyright on Digitization Practices in Australian Museums, Galleries, Libraries and Archives‘ University of New South Wales Law Journal, The, Vol. 30, No. 1, 2007:
Michael Geist, ‘Long-awaited copyright reform plan flawed, but flexible‘Toronto Star, Jun 3, 2010, p.B.1 at
file:///lib-homes.library.uq.edu.au/uqadodem/Downloads/Section%20200AB%20-%20When%20can%20it%20apply.pdf
1860s-2013
NSLA Position Statement on reasonable search for orphan works 2011 Available from arch_orphan_works.pdf [30 January 2014].
IFLA Staement on Orphan Works 2012 Available from [30 January 2014].
ALRC Discussion Paper
Joyce, T. ‘Relying on customary practice when the law says ‘No‘: justified, safe or simply ‘no go‘ Paper delivered at VALA2014 [6 February 2014]