Part 1 – the Copyright Essentials

ALCC libraries copyright training“Going Digital: copyright and libraries online”

Ellen BroadCopyright Law and Policy AdviserAustralian Libraries Copyright CommitteeAustralian Digital Alliance

t: 02 6262 1273w: digital.org.aue: ebroad@nla.gov.au

This slide show is licensed under a Creative Commons Attribution Licence

Understanding copyright

basics

Confusing by Guudmorning ! http://www.flickr.com/photos/kristiand/3223044657/

Copyright law in Australia gives copyright holders exclusive rights to do certain things with their material.

But it is recognised that...

Copyright law must strike a balance between providing an incentive to create works and allowing users (and other creators) reasonable access to copyright

material.

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

Drugged shopping list, by way opening http://www.flickr.com/photos/book_slut/1333441368/

What is protected?

•Literary works•Musical works, including accompanying lyrics•Dramatic works, including accompanying music•Artistic works•Choreographic works•Films•Animations, software•Sound recordings•Published editions•Broadcastings

Types of literary and artistic works in libraries: Books

ManuscriptsPoetry

Periodicals and JournalsDissertations and theses

ReportsPhotographs

Pamphlets/brochuresTextbooks

Reference worksCataloguesDirectories

Paintings, cartoons, sketchesSoftware

Websites and online worksE-mail messages

Subject matter other than works:

FilmsCommercialsDocumentariesRaw footageTV programsHome movies

One motion picture may have layers of copyright, in the:ScoreMusicLyricsScriptScreenplayFilm recording

Sound recordings

Recordings in any format

Copyright holder is the maker of the sound recording – i.e. the record company and performer – distinguish from copyright in musical recording

If a live performance, each performer is also considered a maker of the sound recording.

What rights are protected?

•Reproduction - copying of a work in any format•Publication – right to make the work public for the first time•Public performance and communication – including electronic communications •Adaptation – i.e. translations

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

Who is the owner of copyright?Generally the “author” of the work – the person who translates the idea into a material form.

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

Films – generally producer of the film; but only in moving image and sound – note, there can be multiple layers of copyright in one work!

Employers – generally, employers own copyright

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

Duration of copyright

If a work is published during the life of the author – generally 70 years after end of year of author’s death (literary, dramatic, musical, artistic works)

Film and sound recordings – generally, 70 years from end of year of first publication – remember there may be a number of underlying works in one film or CD! Television and sound broadcast – 50 years from end of year in which broadcast madePhotographs – generally, 70 years after the end of the year of author’s death

Crown copyright? ...unpublished works?

Unpublished works

If material was never published, copyright would not expire

‘publish’ – make available to public as a whole

Works unpublished at the date of the author’s death, or which do not have a known author from which to calculate the date of death (orphan works) – copyright term begins from date of first publication after death

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.

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

Infringement of copyright

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:

AuthorisationImportation Commercial dealings with pirate materialAllowing the use of a venue for infringing performance/screening

Celebrity Shorts 1 Screening 12 by Canadian Film Centre http://www.flickr.com/photos/cfccreates/5804695110/

Authorisation

Section 39A, s49 noticessection 49 – supplying digital copies to library/archive users

COMMONWEALTH OF AUSTRALIACopyright Regulations 1969

WARNINGThis 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

Video: Copyright – Forever Less One Day by CGPGrey

http://www.youtube.com/watch?feature=player_embedded&v=tk862BbjWx4#!

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

Fair dealingFlexible dealing

Library and archival copyingConsumer copying

USE OF COPYRIGHT WORKS

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 fair dealing exceptions:

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?

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

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

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.

Library/archive copying exceptions

User copying (document supply) (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).

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)

A library/archives can copy a reasonable portion of published works held in its collection for a user’s research & study purposes.

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

Limitations of s49• If supplying more than a ‘reasonable portion’ the

library must first consider a number of factors

• 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

Factors to consider - The commercial availability test

•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.

Declaration required

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

Library must retain records of these declarations for 4 years.

The library officer must be satisfied that:

•The published work being supplied cannot be obtained within a reasonable time at an ordinary commercial price (don’t have to consider 2nd hand copies)•The person making the request is the person who will be receiving the material•The declaration that has been provided is not untrue in any way.

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

Section 50 limitations• In general, there are the same limitations depending on

how much is requested, and then, if more than a reasonable portion, whether the work is commercially available

• Generally, the same rules for reasonable portion as before - 10% or 1 chapter, 1 article or more if relating to the same research or course of study.

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)

The declarationAs 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

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://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