Part I: Copyright Essentials
for Libraries and archives
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Australian Libraries
Copyright Committee
Laura Simes
Copyright Adviser
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What is Copyright?
©
Copyright is automatic
4
What does copyright protect?
“Works”
Literary works
Novels, poems
Telephone directories,
computer programs

Dramatic works
Scripts and
screenplays for film,
radio etc

Artistic
works
Paintings, sculptures,
drawings
Maps, architectural
plans
 Musical works
Musical compositions;
the sheet music
notation
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What makes something a
“work”?
Artistic value? Quality?
NO
Telstra Corporation Ltd v Desktop Marketing
Systems 25 May 2001
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What does copyright protect?
“Subject matter other than works”
Films
Films, animations
computer games


Radio &
TV broadcasts
Published editions
Layout, typesetting

Sound recordings
Any recording of
sound

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What rights?
The copyright owner



Has the exclusive right to use the ©
material in particular ways
Can prevent other people from using their
material in certain ways (eg from copying)
Can allow other people to use their material
in certain ways (eg by license)
8
What rights does the copyright
holder have?
“Works”
Reproduce
 Publish
 Publicly perform
 Communicate to the public
 Make adaptation

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What rights does the copyright
holder have?
“Subject matter other than works”
Sound recordings
 Copy
 Communicate to the public
 Cause to be heard in public
 Commercial rental
arrangement in respect of
the recording
Broadcasts
 Record the broadcast
 Communicate to the public
 Re-broadcast
Films
 Copy
 Communicate to the public
 Cause to be seen in public
Published editions of
works
 Right to make an exact
reproduction of the edition.
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Summary:
When Copyright DOES NOT Apply

If the material is not sufficiently ‘original’

When the copyright period has expired material is in the ‘public domain’ and ©
does not apply

When you want to make a use of the work
which isn’t an exclusive right of the
copyright holder
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Moral Rights
Rights of the creator
Creator has the right:
 to be properly attributed for their work

not to have their work falsely attributed

not to have their work treated in a derogatory
way.
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Layers of Copyright…
Example: CD
Musical composition
 Lyrics
 Cover art
 Recording

MUSICAL WORK
LITERARY WORK
ARTISTIC WORK
SUBJECT MATTER
OTHER THAN WORKS
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Who owns copyright?

Generally, the creator owns copyright: s35(2)

Employment relationship: generally the
employer owns ©

Joint creators: both own ©

Can be modified by agreement
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How long does copyright last?
Not published?
Copyright can continue indefinitely
Published?
 General rule = year creator died +70
 AUSFTA extended term from 50 to 70 years
 70 year term applies to material still in © on 1
January 2005
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How long does copyright last?
EXAMPLES
George Orwell (1903 -1950)
Animal Farm
Miles Franklin (1879 – 1954)
My Brilliant Career
Ethel Turner (1872 – 1958)
Seven Little Australians
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How long does copyright last?
From 1 January 2005
Works
= year creator died + 70
Subject matter other than works
Films & sound recordings = year first published + 70
Published editions = year 1st published + 25
Broadcast
= year 1st broadcast + 50
If government owns Copyright (crown copyright)
Year 1st published/year 1st made + 50 years
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Infringement
Can occur in several ways:
1) By using a ‘substantial part’ of copyrighted
material without permission
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Infringement
2) By authorising someone else to use copyright
material without permission



Extent to which the person can prevent the
infringement
Relationship existing between the person and the
person who did the infringing act (eg
employee/employer);
Did the person take reasonable steps to prevent or
avoid the infringing act? Relevant industry codes of
practice?
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Section 39A Notice
COMMONWEALTH OF AUSTRALIA
Copyright Regulations 1969
WARNING
Copyright owners are entitled to take legal
action against persons who infringe their
copyright. A reproduction of material that is
protected by copyright may be a copyright
infringement. Certain dealings with copyright
will not constitute an infringement, including:
…..
Infringement
3) By circumvention of copyright or access protection
devices




Technological protection measures (technological
locks)
Civil and criminal penalties for circumventing locks
to copy / access a © work
Broadened & strengthened under 2006
amendments
Some exceptions (libraries)
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The story so far….

Copyright duration, rights of control, materials
that are included all put the © holder in a
strong position
What are the exceptions to these
copyright rules?
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Exceptions
(1)
Fair dealing
(2)
Library and archive exceptions
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Fair dealing exceptions
No infringement where the use amounts to fair
dealing for the purpose of :
 Criticism and review
 Reporting the news
 Professional legal advice & judicial
proceedings
 Parody & Satire (NEW)
 Research & study
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Research & 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.
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Library and archive exceptions
Reproducing & Communicating Works to
Users for Research & Study (s49)
Separate to fair dealing which applies to the
user.

Applies to libraries & archives who have a
collection accessible to the public, or who
participate in interlibrary loans

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Library and archive exceptions
Reproducing & Communicating Works for
Users for Research & Study




A library/archives can copy a reasonable
portion of published works held in its collection
for a user’s research & study purposes.
Applies to literary, dramatic, musical & artistic
works, which have been published
Does not apply to audiovisual material
Can make and provide copies in electronic form
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Library and archive exceptions
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 research or course of study)
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.
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Library and archive exceptions
Limitations to s49

If supplying more than a ‘reasonable
portion’ the library must first consider a
number of factors (eg what kind or work it is,
whether the work is commercially available).

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
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Library and archive exceptions
Document delivery (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.
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Library and archive exceptions
Copying for the collection: s50(7)

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
Document delivery (s50) 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….
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Library and archive exceptions
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 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
Library and archive exceptions
Reproduction & Communication of 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.

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Library and archive exceptions
Reproducing works for preservation purposes
(s51A)

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’
*Subject to the ‘commercial availability’ test
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Library and archive exceptions
Preservation provision for ‘key
cultural institutions’ (ss51B, 110BA &
112AA) (NEW)
Allows ‘key cultural institutions’ to make
up to 3 copies from the work for the
purpose of preserving against loss or
deterioration.
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Library and archive exceptions
(NEW) Flexible dealing exception: s 200AB
Threshold requirements:
 No other exceptions in the Copyright Act apply
 Use by or on behalf of a body administering a library
or archives
 The intended use is for the purpose of maintaining
or operating the library or archives
 The intended use is not “partly for the purpose of the
body obtaining a commercial advantage or profit”
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Library and archive exceptions
3 step test
The use:
1) amounts to a special case
2) does not conflict with a normal exploitation of
the material
3) does not unreasonably prejudice the
legitimate interests of the copyright holder.
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Special Provision for
the Crown: s183
Who?
Government departments, agencies, and those
authorised by Government to do something for the
services of the Crown.
What does this mean?
- These bodies are exempt from infringement.
- Don’t need to ask permission in advance BUT
must notify the copyright owner afterwards unless
contrary to the public interest
- Not a free exception
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Special provision for
educational institutions
Statutory Licenses - 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
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Statutory Licenses - Parts VA
& VB of the Copyright Act



Some General Points:
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 use the statutory licenses.
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Contract v Copyright Act

Contract can override the Copyright Act.

Check license agreements

This may give you more or less rights than the
Copyright Act provides.
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Part II: Amendments to the
Copyright Act 1968
New ‘Fair Dealing’ Exception
 Exceptions for libraries
 Additional provisions relating to
Technological Protection Measures
(TPMs)
 New Consumer Exceptions
 New Enforcement Regime

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Conclusion
Some questions to ask when thinking about Copyright
issues:
Does the use come under the exclusive rights of
the owner?
 Is the work still in copyright?
 Does an exception apply?
 Do you have a licence that deals with
the intended use?

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Questions?
Laura Simes
Copyright Adviser
Australian Libraries’ Copyright Committee
Executive Officer
Australian Digital Alliance
p:02 6262 1273 | e: lsimes@nla.gov.au
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