Getting your collections out there:Understanding the copyright

framework around online collections

Ellen BroadExecutive officer | Australian Digital Alliance

Copyright adviser | Australian Libraries Copyright Committeeebroad@nla.gov.au

Supported by Australian Library & Information Association (ALIA), Council of Australian University Librarians (CAUL), National and State Libraries

Australasia (NSLA), National Library of Australia (NLA)

Agenda:

9:30am Welcome and introductions

9:40am Copyright 101 (subsistence, duration, protection, exceptions)

10:45am Morning tea

11:45am Digital copyright issues

12:30pm Close

Copyright101

In a nutshell:

“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.”

What is protected?

http://fc01.deviantart.net/fs71/i/2010/017/7/1/Open_book_by_alexiel_resources.jpg

http://images.cdn.fotopedia.com/flickr-8139492153-hd.jpg

http://fc09.deviantart.net/fs70/f/2012/015/0/c/hearts_alexander_calder_inspired_stabile_sculpture_by_cyclops_unicorn-d4mfbc4.png

http://farm9.staticflickr.com/8446/7791686282_d9302d8abd.jpg

As well as:

• Cinematograph film• Broadcasts• Sound recordings• Published editions• Broadcasts

Are buildings protected? What about collages?

Tweets? Computer code?

For how long?

http://farm2.staticflickr.com/1266/5181143856_3f9375660e.jpg

For a copyright duration to commence, in most cases the work

must be published

What is ‘publication’?

•Published (print works)•Offered/made available for sale to the public•Broadcast•Performed in public

What about artistic works?

If a work is never published, when does copyright expire?

http://upload.wikimedia.org/wikipedia/commons/a/a5/Venus_de_Milo_Louvre_Ma399.jpg

Who owns copyright?

Generally, the first person to set the work down in material form. Unless:

•Created in the course of employment•Freelance photographers •Producers (film)•Government

What about anonymous works? Works of joint authorship?

What are the exclusive rights of the copyright holder?

• Reproduction - copying of a work in any format

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

• Public performance• communication – including electronic

communications • Adaptation – i.e. translations

Technological protection measures?

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

Moral rights

Relatively new – introduced in 2000Not a ‘copyright right’Inalienable rights which cannot be assigned

Include:AttributionPrevention of false attributionEnsuring integrity of authorship – right to object to mutilation, distortion, any act prejudicial to author’s honour or reputation

So what isn’t protected under copyright?

Copyright exceptions and limitations

When can you use copyright works without the right holder’s permission?

•The material is in the “public domain”•You are not using a “substantial portion”•The use is in accordance with a CC or other licence•An exception or limitation applies

Exceptions (extracted in hand out)

Fair Dealing for research and study

Fair Dealing for reporting the news

Preservation

Certain publication of unpublished works

Fair Dealing for parody and satire

Document supply

Part VB – educational

copying

Reading aloud in public

Part VA – broadcast licence

Preservation:Section 51A – one copy only:

Quirk: Preservation may be undertaken…

“if the work has been held in the collection in a published form but has been lost or stolen – for the purpose of replacing the work”

Key cultural institutions? Can make up to three copies

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’

http://farm2.staticflickr.com/1346/902434710_6edad6375d_z.jpg?zz=1

Consumer copying:

You can copy music from a CD to a smartphone or tablet - but not to your smartphone and tablet

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 backup a CD or DVD to your computer, but you can't store it privately online so you can listen to it on mobile

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

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 chapter

Electronic = 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.

Educational copying

Statutory Licences

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

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.

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)

Section 200AB – flexible dealing

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.

What’s left outside the exceptions?

• Cloud computing• Data and text mining• Social media use of content• Digitisation (outside of section

200AB)• Uses involving digital locks

with no corresponding Schedule 10A exception

• Indexing and caching• Digital content licensing• Web 3.0? ‘Push’ data?

http://farm4.staticflickr.com/3469/3721809183_847a705f0c.jpg

Morning tea

(resume at 11:15am)

Copyright online

Social mediaContent licensing

DigitisationDigital repositories

Data and text mining

Social media Pinterest

Social media - Pinterest

“You grant Pinterest and its users a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, store, display, reproduce, re-pin, modify, create derivative works, perform, and distribute your User Content on Pinterest solely for the purposes of operating, developing, providing, and using the Pinterest Products. Nothing in these Terms shall restrict other legal rights Pinterest may have to User Content, for example under other licenses. We reserve the right to remove or modify User Content for any reason, including User Content that we believe violates these Terms or our policies.”

Social media Tumblr

“When you transfer Subscriber Content to Tumblr through the Services, you give Tumblr a non-exclusive, worldwide, royalty-free, sublicensable, transferable right and license to use, host, store, cache, reproduce, publish, display (publicly or otherwise), perform (publicly or otherwise), distribute, transmit, modify, adapt (including, without limitation, in order to conform it to the requirements of any networks, devices, services, or media through which the Services are available), and create derivative works of (including, without limitation, by Reblogging, as defined below), such Subscriber Content.

The rights you grant in this license are for the limited purpose of operating the Services in accordance with their functionality, improving the Services, and allowing Tumblr to develop new Services. The reference in this license to "derivative works" is not intended to give Tumblr itself a right to make substantive editorial changes or derivations, but does enable Tumblr Subscribers to redistribute Subscriber Content from one Tumblr blog to another in a manner that allows Subscribers to, e.g., add their own text or other Content before or after your Subscriber Content ("Reblogging").”

In other words:Tumblr

“When you upload your creations to Tumblr, you grant us a license to make that content available in the ways you'd expect from using our services (for example, via your blog, RSS, the Tumblr Dashboard, etc.). We never want to do anything with your content that surprises you.

Something else worth noting: Countless Tumblr blogs have gone on to spawn books, films, albums, brands, and more. We're thrilled to offer our support as a platform for our creators, and we'd never claim to be entitled to royalties or reimbursement for the success of what you've created. It's your work, and we're proud to be a part (however small) of what you accomplish.”

Social mediaFacebook

“For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.”

Digital contentItunes

http://farm3.staticflickr.com/2439/3905930135_ab979bd9c2.jpg

Example 1, licence terms of use: “Licensee, the Institutions and Authorized Users may use the Licensed Materials for purposes of research, education or other non-commercial use as

follows: Display. Licensee, the Institutions and Authorized Users shall have the right to electronically display the Licensed Materials. Digitally Copy. Licensee, the Institutions and Authorized Users may download and digitally copy a Reasonable Amount of the Licensed Materials. Print Copy. Licensee, the Institutions and Authorized Users may print a Reasonable Amount of the Licensed Materials. Recover Copying Costs. Licensee and the Institutions may charge a reasonable fee to cover costs of copying or printing portions of Licensed Materials for Authorized Users. Course Packs. Licensee, the Institutions and Authorized Users may use a Reasonable Amount of the Licensed Materials in the preparation of Course Packs or other educational materials. Electronic Reserve. Licensee, the Institutions and Authorized Users may use a Reasonable Amount of the Licensed Materials for use in connection with specific courses of instruction offered by Licensee. Analysis. Authorized Users shall be permitted to extract or use information contained in the Licensed Materials for educational, scientific, or research purposes, including but not limited to extraction and manipulation of information for the purposes of illustration, explanation, example, comment, criticism, teaching, research, or analysis. Scholarly Sharing. Authorized Users may transmit to a third party colleague in hard copy or electronically, minimal, insubstantial amounts of the Licensed Materials for personal use or scholarly, educational, or scientific research or professional use but in no case for resale or commercial purposes. In addition, Authorized Users have the right to use, with appropriate credit, figures, tables and brief excerpts from the Licensed Materials in the Authorized User’s own scientific, scholarly and educational works. Inter-Library Loan (“ILL”). The Institutions shall be permitted to use Reasonable Amounts of the Licensed Materials to fulfill occasional requests from other, non participating institutions, a practice commonly called Inter-Library Loan. Customer agrees to fulfill such requests in compliance with Section 108 of the United States Copyright Law (17 USC §108, “Limitations on exclusive rights: Reproduction by libraries and archives”) and the Guidelines for the Proviso of Subsection 108(2g)(2) prepared by the National Commission on New Technological Uses of Copyrighted Works (CONTU).”

Example 2, licence terms of use: “(a) You, subject to clause 4 below, may:

(i) Allow Authorised Users to have access to the Work from the Publisher's Server via the Secure Network;(ii) Access, search and view the Work for the purpose of internal marketing or testing or for training Authorised Users or groups of Authorised Users.

(b) Authorised Users may, subject to clause 4 below:(i) Access, search and view the Work for personal use only;(ii) copy and paste one chapter of each title in the collection in question, or up to 5% of the pages from the total collection, whichever is the greater, for personal use only, during any given four-week period, unless otherwise stated in a

collection;(iii) make printed copies of one chapter or up to 20% of the pages from the totalcollection, whichever is greater, for personal use, during any given four-week

period, unless otherwise stated in a collection.

(c) Nothing in this Agreement shall in any way exclude, modify or affect any of Your statutory rights under applicable copyright law.”

Other content licensingCreative Commons

Misuse of CC-licensed images

Image CC-licence non-commercial, by Trey Radcliff http://stuckincustoms.smugmug.com/Other/Reviews-1/22214446_bJbgcQ#!i=2333724989&k=63K74xh&lb=1&s=M

Data and text mining

• Mapping the Republic of Letters• London lives

Digitisation checklist

• Is the work in copyright?• Is there an exception which

might apply?– Section 200AB

• Is there a TPM attached to the content?

• Can you provide attribution?

Building a lasting relationship

Moral rightsCreative commons

Acquisition/Deposit agreements

Licence your own copyright material under creative commons

Encouraging copyright owners to allow others to share, remix and reuse their material legally.

AttributionCC BYAttribution-Share AlikeCC BY-SAAttribution-No Derivative WorksCC BY-NDAttribution-NoncommercialCC BY-NC

Acquisition/deposit agreements

• Seeking permissions• Develop a template for permitted uses of

copyright materials• i.e. Series of tick boxes for the copyright

holder listing permitted uses of material: publication online, use in catalogue, marketing materials, etc

• See template provided

ALRC Copyright Inquiry – your thoughts

Any last words?

Thank youEllen BroadE: ebroad@nla.gov.auT: (02) 6262 1273

http://fc04.deviantart.net/fs70/i/2011/123/2/4/alexander_ii_on_his_deathbed_by_kraljaleksandar-d3fhd1i.jpg