Copyright for Libraries: Presentation given in Darwin 2015. Please see last slide for attributions and copyright

1. Australian Libraries Copyright Committee Training
Darwin 2015
@TrishHepworth
Except where otherwise noted, this presentation is licensed under a Creative Commons Attribution 4.0
Licence, Australian Libraries Copyright Committee

2. Copyright – a property right that protects expression
Separate from moral rights

3. /

5. Trish’s

6. 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
/

7. Works Subject Matter
other than works
• Literary
• Dramatic
• Artistic
• Musical
Films
Films, animations
computer games
Sound recordings
Any recording of sound
Radio & TV broadcasts
Published editions
Layout, typesetting

8. • Score
• Music
• Lyrics
• Background music
• Sound recordings
• Script
• Underlying work
• Screenplay
• Costume design
• Artworks
• Film recording

9. 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;
•If made in course of employment the
Employer

11. 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

12. 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

13. 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…

14. 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

15. 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

17. Moral rights
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

18. Insubstantial
Public Domain
Permission
Licence
Exception

21. Exceptions/Licences
(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

22. 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’

23. 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 reproduced
As well as professional legal privilege and judicial proceedings

24. 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.

25. 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

26. Part VA: Broadcasts (TV, radio,
cable, satellite). License managed
by Screenrights
Part VB: Works (hard copy &
electronic) License managed by
the Copyright Agency Limited

27. 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.

28. 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

29. 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

30. https://www.universitiesaustralia.edu.au/
www.smartcopying.edu.au

31. 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

32. 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?

33. 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)

34. 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
Unless the work is not available in a reasonable time and at an ordinary
commercial price

35. 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

36. 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.

37. 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)

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

39. 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

40. 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.

41. 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.

42. Exceptions – Flexible Dealing (s200AB)
www.libcopyright.org.au

48. Institutions are already sharing – we know the
benefits of being online

49. it’s still difficult or illegal to use most of this material without going
through cumbersome processes
Institutions are already sharing – we know the
benefits of being online

50. it’s still difficult and illegal to use most of this material without going
through cumbersome processes
open materials are materials which you can use without asking
permission – permission has already been given
Institutions are already sharing – we know the
benefits of being online

51. • open licensed
material can be
used without
worrying about
copyright laws or
exceptions – by
anyone, anywhere,
with assurance
Lock by AMagill available at http://www.flickr.com/photos/amagill/235453953/ under a Creative Commons Attribution
Licence

53. • Standardisation is good –
• usability, compatibility
• Licences are good –
• international, applied
• Easy to use
• Metadata is key
why CC?

54. Licence Elements
Attribution – credit the author
Noncommercial – no commercial use
No Derivative Works – no remixing
ShareAlike – remix only if you let others
remix

55. Attribution-ShareAlike• Attribution
Attribution-Noncommercial
Attribution-NoDerivatives
Attribution-Noncommercial-ShareAlike
Attribution-Noncommercial-NoDerivatives
4.0 – international, easier, clearer (and database
rights)

56. CC Zero
http://creativecommons.org/publicdomain/zero/1.0/

61. Creative
Commons
provides
resources that
you and your
users can
legally copy,
modify and
reuse
myCCstickershavearrived!!!bylaihiuavailableat
http://www.flickr.com/photos/laihiu/290630500/
underaCreativeCommonsAttribution2.0licence

62. search.creativecommons.org

64. • More than 500 million CC
objects on the internet
• Almost 300 million
photos on Flickr alone

65. • It also provides
a tool for
managing your
own copyright
Tooled Flatty by flattop341 available at http://www.flickr.com/photos/flattop341/1085739925/
under a Creative Commons Attribution 2.5 licence
CRICOS No. 00213J

66. • to allow collaboration and
sharing with other
students, teachers, the
world
Girls Sharing a mp3 Player by terren in Virginia availabl
http://www.flickr.com/photos/8136496@N05/227547565
under a Creative Commons Attribution 2.0 licence

67. Tropenmuseum
It was an easy way to…engage new audiences…[and] spread the stories from the
collection…In the end I think more people will visit the museum and look online.
– Susanne Ton, Manager of Multimedia Production, Tropenmuseum
http://www.youtube.com/user/wikimedianl#play/all/uploads-all/0/4aPatvL5kvo
http://en.wikipedia.org/wiki/Tropenmuseum
http://en.wikipedia.org/wiki/Battle_of_karbala http://en.wikipedia.org/wiki/File:Ira
n_Battle_of_Karbala_19th_centur
y.jpg
museum of the tropics, Amsterdam
“crowdsourced” open access - invited public to photograph collections and
upload to Wikicommons (under CC BY-SA)
350+ photographs now on Wikicommons for use by museum and on
Wikipedia – with link back

69. Is the use fair?

70. (a) research or study;
(b) criticism or review;
(c) parody or satire;
(d) reporting news;
(e) professional advice;
(f) quotation;
(g) non-commercial private use;
(h) incidental or technical use;
(i) library or archive use;
(j) education; and
(k) access for people with disability.

71. (a) the purpose and character of the use;
(b) the nature of the copyright material used;
(c) in a case where part only of the copyright
material is used—the amount and substantiality of
the part used, considered in relation to the whole of
the copyright material; and
(d) the effect of the use upon the potential market
for, or value of, the copyright material.

72. Public domain image, author unknown

73. • What are you doing?
• What are you using?
• How much are you using?
• What about the copyright holder?

75. lost or stolen--for the purpose of replacing the work
if the officer is satisfied that a copy (not being a second-hand copy) of
another edition of the work
"photograph" includes photo-lithograph and a work produced by a
process similar to photography.
3 photographic reproductions of the work
Preservation copying

76. Orphan works

77. Document Supply and Inter-library loan

78. The Copyright Act should be amended to clarify that the statutory licences in pts
VA, VB and VII div 2 do not apply to a use of copyright material which, because of
another provision of the Act, would not infringe copyright. This means that
governments, educational institutions and institutions assisting people with
disability, will be able to rely on unremunerated exceptions, including fair use or
the new fair dealing exception, to the extent that they apply.

82. Balfour Smith, Canuckguy, Badseed. - Original image by Balfour Smith at Duke University
http://www.publicdomainday.org/node/39 CC BY 3.0

83. Heald, Paul J How Copyright Makes Books and Music Disappear (and How Secondary Liability Rules Help Resurrect Old Songs)
LBSS14-07, Illinois Public Law Research Paper No. 13-54 http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=227781

85. •Additional or pre-established
damages
•Aiding and abetting

86. Each Party shall endeavor to
achieve an appropriate
balance in its copyright and
related rights system, inter
alia by means of limitations or
exceptions that are consistent
with Article QQ.G.X, including
those for the digital
environment, giving due
consideration to legitimate
purposes such as, but not
limited to, criticism, comment,
news reporting, teaching,
scholarship, research [CL/MY
propose181
: ,education, ] [CL
propose: and persons with
disabilities]
[US/MY/SG/CA/PE/BN/MX/VN
propose: , as well as
facilitating access to published
works for persons who are
blind, visually impaired, or
otherwise print disabled]182 183
.
With respect to Section G, each Party
shall confine limitations or exceptions
to exclusive rights to certain special
cases that do not conflict with a
normal exploitation of the work,
performance, or phonogram, and do
not unreasonably prejudice the
legitimate interests of the right
holder.
Article QQ.G.X.1 neither reduces nor
extends the scope of applicability of
the limitations and exceptions
permitted by the TRIPS Agreement,
Berne Convention [VN propose:
Rome Convention,] the WIPO
Copyright Treaty, and the WIPO
Performances and Phonograms
Treaty. 180

89. Accessibility

93. •Discovery
•Preservation
•Accessibility
•Empowering
patrons

94. Slide 1:"Darwin sunset“; Slide 2 "Mount Stromlo“; Slides 3 &6: "Child's writing“; Side 7 “National Library of Australia”; Slides 8 &11 “Film on Mt
Vodno”; slide 9 “lamp”; slide 12 “Photos on Mt Vodno”; slide14; “Belgrade locks”; slide 16 “Man waiting for bus – Budapest”; slide 17 “Sunset in
Skopje”; slide 18 “Stairs to Gardos, Zemun”; slide 21 “Finnish island”; slide 23 “more Finnish Island”; slides 24 & 25 “Shakespeare Room, State
Library of NSW”; Slide 26 “blegrade subway station”; slide 27 “collection photocopies from State Library WA”; slides28-30 “pages”; slide 31
“Canberra sky”; slides 32-33 “Alhambra Garden”; slides 34-37 “Guerilla Bay”; slide 38 “Belgrade door”; slides 39-40 “Preservation computer at
National Library of Australia”; slide 41 “stairs at Lake Ohrid”; slide 47 “fountain at Canberra Airport”; slide 69 “Trg Republik, Beograd”; slide 70
“Lock”; slides 71&73 “Usce Shopping Centre Belgrade”; slide 75 “Tito books”; slide 76 “Belgrade cat”; slide 77 “Kalemegdan in snow”; slide 78
“Sava River”; slide 90 “Work in progress sign Lyon”; all by Trish Hepworth are licensed under a Creative Commons Attribution 4.0
Slide 5: William Shakespeare; copper engraving of Shakespeare by Martin Droeshout - Beinecke Rare Book & Manuscript Library, Yale
University PD altered by Trish Hepworth Creative Commons Attribution 4.0
Slide 10: Kangaroo: FR Morris Collection Public Domain altered by Trish Hepworth CCBY 4.0, using ‘moustache’ from Pixabay CC0 and
Monitor Trish Hepworth CCBY 4.0
Slide 15: “Cooking for Copyright” FAIR is licenced under a Attribution-NonCommercial-ShareAlike 4.0 International (CC BY-NC-SA 4.0)
Slide 19: “Cats” by Alyson Dalby is licensed under a Creative Commons Attribution 4.0
Slide 20:
Slides 42-46: Taken from Section 200AB Flexible Dealing handbook licenced Attribution-NonCommercial-ShareAlike 3.0 Unported (CC BY-NC-
SA 3.0)
Slides 48-67: Taken from Jessica Coates “Open Access GLAM: CC and the Public Domain for Galleries, Libraries, Archives and Museums”
originally licensed under a Creative Commons Attribution 4.0 modified by Trish Hepworth and also licensed under a Creative Commons
Attribution 4.0
Slide 68: Dorotella black tabby spotted and white female kitten CCBY2.0 Pieter & Renée Lanser adapted with addition of pirate hat (public
domain via pixabay) by Trish Hepworth CCBY4.0
Slide 74: “Cooking for Copyright” Screenshot: CC BY-NC-SA 4.0 FAIR (run by the Australian Library and Information Association (ALIA))
Slide 81: Secret TPP negotiations © Open Media Canada, used with permission
Slide 82: Balfour Smith, Canuckguy, Badseed. - Original image by Balfour Smith at Duke University CC BY 3.0
Slide 83: Copyright Heald, Paul J How Copyright Makes Books and Music Disappear (and How Secondary Liability Rules Help Resurrect Old
Songs) LBSS14-07, Illinois Public Law Research Paper No. 13-54: used with permission
Slide 84: "Locks" by Trish Hepworth is licensed under aCreative Commons Attribution 4.0 International License.
Slide 85: Forex Money for Exchange in Currency Bank epSos.de CCBY2.0
Slide 86: Laneway Public domain
Slide 87: Paris Tuileries Garden Facepalm statue photo CC BY 2.0 Alex E. Proimos
Slide 88: braille children’s book at Visibility, photo Trish Hepworth CCBY4.0
Slide 91: Screen shot “Copyright Hunter” Australian War Memorial, text Creative Commons Attribution-NonCommercial 3.0 Australia (CC BY-
NC 3.0 AU) license. Image Bean, Charles Edwin Woodrow (C E W) Copyright expired - public domain
Slide 92: Open Access logo CC0