Study study by lethaargic http://www.flickr.com/photos/lethaargic/3660097148/

Fair dealingFlexible dealing

Library and archival copyingConsumer copying

PART 2EXCEPTIONS AND LIMITATIONS

Use of a copyright work in one of the ways exclusively reserved for the copyright holder (i.e. reproduction,

publication, communication) without their permission will be an infringement of copyright...unless a limitation

or exception applies.

Limitations

1. Duration of copyright - first of all, has the work been published? And if so, calculate its copyright term limit(Generally 70 years after the death of the author). If the material is out of copyright it is in the public domain and available for free use and re-use.

What about unpublished works?

2. Threshold for material to be copyright – authorship, material form, originality

3. Statutory licences – removing the need to obtain permission to use certain works (educational institutions, Commonwealth agencies)

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’ iPod touch – My PDA by MJ/TR

http://www.flickr.com/photos/mujitra/3516968781/

Exceptions – Fair Dealing

Allows use of a work for:

Research or study (s40) – with limits on amount of the work that can be reproducedCriticism or review (s41) – must involve analysis or critique of the work – cannot be merely illustrative.Parody or satire s41A) – must offer comment on the workReporting of news (s42)

As 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

Other Exceptions – Fair Dealing

Allows use of a work for:

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 workReporting of news (s42)

As well as professional legal privilege and judicial proceedings

Can I insert a picture of TV show The Panel here to illustrate the

Federal Court proceedings?

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 governments•Some government agencies and statutory bodies (may need legal advice)•Educational purposes within educational institutions specifically excluded.

For the services of government

Could non-government libraries/archives ever use s183? Could educational institutions use s183 for non-educational purposes?

Exceptions – Library and Archival copying(Remember! definition of ‘archive’ includes museums, galleries)

User copying (s49)Inter library/archive loan (s50)Unpublished works (s51 and 110A) – 50 years after the creator’s death, archives can make copies of unpublished works, sound recordings and films for the purposes of research or study or with a view to publication.

s52 – unpublished work where the creator is not knownnot an orphan works exception

Preservation copying (s51A for works, s110B for films, sound recordings) – only if a copy cannot be obtained within a reasonable time frame at ordinary commercial price, for limited uses and reasons ‘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).

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 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.(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.

Exceptions – Flexible Dealing (s200AB)

Available online at:

http://www.digital.org.au/alcc/resources/documents/FlexibleDealingHandbookfinal.pdf

Also:Copyright in Cultural Institutions Group‘Flexible Dealing and Cultural Institutions’http://nma.gov.au/shared/libraries/attachments/about_us/cici/statement_principles/files/35143/CICI_Statement_Principles_Section_200AB.pdf

Exceptions – Flexible Dealing (s200AB)

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.

Berne – Federal Parliament Square by Kecko http://www.flickr.com/photos/kecko/5765572304/

Providing online public access to collection material?

Apply the 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.Digital Archive, Boston Institute of Contemporary Art by Peter Alfred Hess http://www.flickr.com/photos/peterhess/5806305467/

Section 200AB and barriers to placing material online

• Digitisation involves circumvention of TPM;

• Commercial availability of works

• Existence of a licence?

Example: Placing thumbnail images online

Format shiftingWhere not covered by preservation copying or consumer exceptions

The use does: • Not conflict with

normal exploitation of the work;

• Not unreasonably prejudice the copyright holder; and

• is a special case.VHS Heaven...or Hell by makelessnoise http://www.flickr.com/photos/makelessnoise/203559383/

Orphan Works

Allan Stomann, creator unknown, courtesy Swinburne Image Bank, Swinburne University of Technology http://images.swinburne.edu.au/handle/1111.1/3343

Locating the copyright holder Before turning to the three step test under s200AB, you need to demonstrate you’ve taken reasonable steps to contact the copyright holder:

“reasonable steps”– considerations:

• Nature of the work – commercial or non-commercial

• Age of the work• Published or unpublished work• Potential concerns of the creator – deceased,

alive, interests of the estate• Extent of the planned use• Reasonable enquiries of others• Common sense

Orphan WorksAfter taking reasonable steps to locate the copyright holder

The use does: • Not conflict with

normal exploitation of the work;

• Not unreasonably prejudice the copyright holder; and

• is a special case.

Allan Stomann, creator unknown, courtesy Swinburne Image Bank, Swinburne University of Technology http://images.swinburne.edu.au/handle/1111.1/3343

Orphan Works – Large scale uses and “special case”Where collection consists predominantly of orphan works

Scalable search:

• Conduct reasonable enquiries into a proportion of the collection

• “reasonable enquiries” - considerations from previous slide

Eaglebrook School Archives, the 1960s by Eaglebrook School http://www.flickr.com/photos/eaglebrook/5549951920/

Orphan Works

Allan Stomann, creator unknown, courtesy Swinburne Image Bank, Swinburne University of Technology http://images.swinburne.edu.au/handle/1111.1/3343

Reproducing orphan works ‘in good faith’.

Swinburne University Orphan Works statement:

‘The University is continuing to endeavour to trace the copyright owner(s) and in the meantime this item has been reproduced here in good faith. We would be pleased to hear from copyright owner(s).’