Copyright Essentials

ALCC libraries copyright training

Trish HepworthCopyright Law and Policy AdviserAustralian Libraries Copyright CommitteeAustralian Digital Alliance

t: 02 6262 1102w: digital.org.aue: phepworth@nla.gov.au

This slide show is licensed under a Creative Commons Attribution Licence

Copyright – a property right that protects expression

Separate from moral rights

Balance

An incentive to createReasonable access to copyright material

Image – Mimi & Eunice http://mimiandeunice.com/2011/05/23/copyright-reform/

Requirements for copyright protection:

Can only be form of expression of information

Expression must be in material form

The work must have an author

The work must be original

originality of expressionnot underlying idea

/

Works• Literary• Dramatic• Artistic• Musical

BooksManuscripts

PoetryPeriodicals and

JournalsDissertations and

thesesReports

PhotographsPamphlets/brochures

TextbooksReference works

CataloguesDirectories

Paintings, cartoons, sketchesSoftware

Websites and online worksE-mail messages

Subject matter other than works

FilmsFilms, animationscomputer games

Sound recordingsAny recording of sound

Radio & TV broadcasts

Published editionsLayout, typesetting

One motion picture may have layers of copyright• Score• Music• Lyrics• Script• Screenplay• Film recording

Copyright gives exclusive rights to:

• Reproduce: copying of a work in any format, including electronic

• Publication: right to make the work public for the first time

• Public performance and communication: including electronic communications

• Adaptation: i.e. translations, TV series

Generally, copyright is infringed if the work, or a “substantial part” of the work, is used without permission in one of the ways exclusively reserved by the copyright owner…

Copyright can also be infringed where there is:

• Authorisation• Importation • Commercial dealings with pirate material• Allowing the use of a venue for infringing • performance/screening

Who is the owner of copyright?

Generally the “author”

In sound recordings, the “maker”– can be performers and record producers

Films – generally “producer” of the film;there can be multiple layers of copyright in one work!

Employers

Newspaper clippings table by carmichaellilibraryhttp://www.flickr.com/photos/carmichaellibrary/3820957471/

Moral rightsNot a ‘copyright right’

Inalienable rights which cannot be assigned

Include:• Attribution• Prevention of false attribution• Ensuring integrity of authorship – right to object to

mutilation, distortion, any act prejudicial to author’s honour or reputation

Duration of copyright

70 years after death

Film and sound recordings –Depends on which rights! 1955, 1955-1968, 1968+

Television and sound broadcast – 50 years from end of year in which broadcast made

Photographs – generally, 70 years after the end of the year of author’s death

Orphan works? ...unpublished works?

toa267

Exceptions

insubstantial

public domain

licence or

permission

Public Domain Image

– Author unknown

Exceptions

(1) Private copying(2) Fair dealing(3) Crown Copying s 183 (NOT FREE)(4) Educational Licenses (NOT FREE)(5) Library and archive exceptions(6) Flexible dealing

Exceptions – private copyingNot available to organisations or institutions –‘private and domestic use’

Time shifting - recording TV programs or radio to watch or listen to at another time

Format shifting - i.e. scanning photographs to put on a CD; converting CD to digital files***

Shifting music between devices (‘the iPod exception’) – ‘space shifting’

•You can copy music from a CD to your

tablet - but you can't copy a film from

a DVD to your tablet.

•You can use a mobile app to record a

TV show on a device stored in your

home, but not if it is recorded and

stored in the cloud.

•You can backup your own email

attachments and shared pictures, but

not emails and attachments someone

else sends to you.

http://www.choice.com.au/consumer-action/consumer-protection/digital-rights-copyright/fair-use.aspx

Exceptions – Fair Dealing

• Criticism or review (s41) – must involve analysis or critique of the work – cannot be merely illustrative.

• Parody or satire s41A) – must offer comment on the work• Reporting of news (s42)• Research or study (s40) – with limits on amount of the

work that can be reproducedAs well as professional legal privilege and judicial proceedings

Fair Dealing for research or study (s40)

Certain quantities are ‘deemed’ fair:

Hardcopy = 10% of pages or 1 chapterElectronic = 10 % of words or 1 chapterPeriodicals = 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.

Fair Dealing for research or study (s40)

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.

NOTE : THIS DOES NOT APPLY TO AUDIO VISUAL MATERIAL AND THERE’S NO GUIDANCE FOR COPYRIGHT IMAGES (ARTISTIC WORKS) – NEED TO CONSIDER ALL THE FACTORS BEFORE COPYING

Parts VA & VB Copyright Act

Part VA: Broadcasts (TV, radio, cable, satellite). License managed by Screenrights

Part VB: Works (hard copy & electronic) License managed by the Copyright Agency Limited

Educational licences

•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 rely on

these licenses.

Part VA – broadcast material

•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

• If communicated (eg by email), a copyright warning notice

required

Part VB – literary, dramatic, musical works

•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

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

Part VB – literary, dramatic, musical works

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.

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.

www.smartcopying.edu.au

Crown copying exception - section 183

Certain Commonwealth, State and Territory

government bodies can use any copyright materials

provided the purpose is for the service of the

Commonwealth, State or Territory.

Who?Commonwealth, state and territory departments – it does not apply to local governmentsSome government agencies and statutory bodies (may need legal advice)Educational purposes within educational institutions specifically excluded.

For the services of government

Crown copying exception - section 183

-They are exempt from infringement

-Need not ask permission in advance BUT must notify

the copyright owner afterwards unless contrary to the

public interest.

-If they have an agreement that allows a collecting

society to administer s183 copying then they need not

notify the copyright owner at all.

-Not a free exception

Crown copying exception - section 183

Certain Commonwealth, State and Territory

government bodies can use any copyright materials

provided the purpose is for the service of the

Commonwealth, State or Territory.

Who?Commonwealth, state and territory departments – it does not apply to local governmentsSome government agencies and statutory bodies (may need legal advice)Educational purposes within educational institutions specifically excluded.

For the services of government

Library/archive copying exceptions

User copying (document supply) (s49)Inter library/archive loan (s50)Unpublished works (s51 and 110A) Preservation copying (s51A for works, s110B for films, sound recordings) ‘Key cultural institutions’ and special preservation copying exceptions – only available to libraries with a mandate to develop and maintain a collection (i.e. NAA, NFSA, state libraries).

Commercial/corporate libraries?

Document supply and interlibrary loan

I. Libraries & archives can reproduce & communicate articles and works to users for ‘research & study’ (s49)

II. Libraries & archives can reproduce & communicate articles and works to another library for inclusion in their collection;or to supply a user under s 49. (s50)

What is a reasonable portion?

Same as the “deemed fair” quantities under the fair dealing provision -

Hardcopy = 10% of pages or 1 chapterElectronic = 10 % of words or 1 chapterPeriodicals = 1 article (more than 1 if it relates to the same course of research or study

Unless the work is not available in a reasonable time and at an ordinary commercial price

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

Copying works for other libraries and archives (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.

For the purposes of inclusion in a collection

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

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)

Copying 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 filmThe 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 is, you must put a notice in the Government Gazette.(s51, s52 & s110A)

Preservation Copying

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’: purposes directly related to the care or control of the collection

*Subject to the ‘commercial availability’ test

Preservation copying for key cultural institutions

Allows ‘key cultural institutions’ to make up to 3 copies from the work for the purpose of preserving against loss

or deterioration.

Authorisation

Section 39A, s49 notices

section 49 – supplying digital copies to library/archive users

COMMONWEALTH OF AUSTRALIA

Copyright Regulations 1969

WARNING

This material has been provided to you

pursuant to section 49 of the Copyright Act

1968 (the Act) for the purposes of

research or study. The contents of the

material may be subject to copyright

protection under the Act.

Further dealings by you with this material

may be an infringement of copyright…

Circumvention of Technological Protection Measures (TPMs)

Digital ‘locks’ preventing people from using works in certain ways and/or accessing copyright works.

Exceptions allowing the circumvention of TPMs:

Where the copyright owner permits itRegion coding (DVDs, games)Interoperability with computer programsMaking of preservation copiesProviding works to users and other libraries under section 49 and 50

Exceptions – Flexible Dealing (s200AB)

Available online at:http://libcopyright.org.au/our-work/library-resource/section-200ab-flexible-dealing-handbook-online

Also:Copyright in Cultural Institutions Group‘Flexible Dealing and Cultural Institutions’http://pandora.nla.gov.au/tep/126143

A.Is the use allowed under another section of the Copyright Act? Fair dealing, library and archival copying, statutory licence, consumer exceptions, section 183

B.For the purposes of “maintaining or operating” the library or archives? Or for “educational instruction”?

C.Does the use meet the requirements of s200AB? The use must:

•Not conflict with normal exploitation of the work;•Not unreasonably prejudice the copyright holder; and•Be a special case.

3 Step Test

Make sure the use does: •Not conflict with normal exploitation of the work;•Not unreasonably prejudice the copyright holder; and•is a special case.