Part 1 - copyright basics

1. Part 1 – the Copyright Essentials
ALCC libraries copyright training
“Going Digital: copyright and libraries online”
Ellen Broad
Copyright Law and Policy Adviser
Australian Libraries Copyright Committee
Australian Digital Alliance
t: 02 6262 1273
w: digital.org.au
e: ebroad@nla.gov.au
This slide show is licensed under a Creative Commons Attribution Licence

2. Understanding
copyright
basics
Confusing by Guudmorning ! http://www.flickr.com/photos/kristiand/3223044657/

3. 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.

4. 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 expression
not underlying idea
Drugged shopping list, by way opening
http://www.flickr.com/photos/book_slut/133
3441368/

5. 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

6. Types of literary and artistic works in
libraries: Books
Manuscripts
Poetry
Periodicals and Journals
Dissertations and theses
Reports
Photographs
Pamphlets/brochures
Textbooks
Reference works
Catalogues
Directories
Paintings, cartoons, sketches
Software
Websites and online works
E-mail messages

7. Subject matter other than works:
Films
Commercials
Documentaries
Raw footage
TV programs
Home movies
One motion picture may have layers of
copyright, in the:
Score
Music
Lyrics
Script
Screenplay
Film 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.

8. 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

9. Moral rights
Relatively new – introduced in 2000
Not 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

10. 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/

11. 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 made
Photographs – generally, 70 years after the end of the year of
author’s death
Crown copyright?
...unpublished works?

12. 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

13. 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.

14. 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

15. 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:
Authorisation
Importation
Commercial dealings with pirate material
Allowing 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/

16. 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…

17. 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 it
Region coding (DVDs, games)
Interoperability with computer programs
Making of preservation copies
Providing works to users and other libraries under section 49 and 50

18. Video: Copyright – Forever Less One Day by CGPGrey
http://www.youtube.com/watch?
feature=player_embedded&v=tk862BbjWx4#!

19. Study study by lethaargic http://www.flickr.com/photos/lethaargic/3660097148/
Fair dealing
Flexible dealing
Library and archival copying
Consumer copying
USE OF COPYRIGHT WORKS

20. 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.

21. 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)

22. 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

23. Exceptions – private copying
Not 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/

24. Exceptions – Fair Dealing
Allows use of a work for:
Research or study (s40) – with limits on amount of the work that can be
reproduced
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)
As well as professional legal privilege and
judicial proceedings

25. 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 chapter
Periodicals = 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.

26. 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

27. 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 work
Reporting 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?

28. 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?

29. 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

30. 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

31. 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.

32. 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

33. 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.

34. 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.

35. 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 known
not 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?

36. 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)

37. 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 chapter
Electronic = 10 % of words or 1 chapter
Periodicals = 1 article (more than 1 if it relates to the
same course of research or study

38. 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

39. 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.

40. 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.

41. 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.

42. 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.

43. 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

44. 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.

45. 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)

46. The declaration
As 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

47. 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)

48. 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

49. 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.

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