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Exceptions and Limitations Under Copyright
- 1. PART 2 EXCEPTIONS AND LIMITATIONS Study study by lethaargic http://www.flickr.com/photos/lethaargic/3660097148/ Fair dealing Flexible dealing Library and archival copying Consumer copying
- 2. 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.
- 3. 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 What about unpublished works? 2.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)
- 4. Exceptions Private copying Fair dealing Crown Copying s 183 (NOT FREE) Educational Licenses (NOT FREE) Library and archive exceptions Flexible dealing
- 5. 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/
- 6. 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
- 7. 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.
- 8. 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
- 9. Other Exceptions – Fair Dealing Allows use of a work for: 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?
- 10. 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?
- 11. Exceptions – Library and Archival copying (Remember! definition of ‘archive’ includes museums, galleries) User copying (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).
- 12. 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)
- 13. 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
- 14. 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.
- 15. Exceptions – Flexible Dealing (s200AB) Available online at: http://www.digital.org.au/alcc/resources/documents/ Also: Copyright in Cultural Institutions Group ‘Flexible Dealing and Cultural Institutions’ http://nma.gov.au/shared/libraries/attachments/abou
- 16. Exceptions – Flexible Dealing (s200AB) • Is the use allowed under another section of the Copyright Act? Fair dealing, library and archival copying, statutory licence, consumer exceptions, section 183 • For the purposes of “maintaining or Berne – Federal Parliament Square by Kecko http://www.flickr.com/photos/kecko/5765572304/ operating” the library or archives? Or for “educational instruction”? • 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.
- 17. Providing online public access to collection material? Apply the 3 step test Make sure the use does: • Not conflict with normal exploitation of the work; • Not unreasonably prejudice the copyright holder; and • is a special case. Digital Archive, Boston Institute of Contemporary Art by Peter Alfred Hess http://www.flickr.com/photos/peterhess/5806305467/
- 18. Section 200AB and barriers to placing material online • Digitisation involves circumvention of TPM; • Commercial availability of works • Existence of a licence? Example: Placing thumbnail images online
- 19. Format shifting Where not covered by preservation copying or consumer exceptions The use does: • Not conflict with normal exploitation of the work; • Not unreasonably prejudice the copyright holder; and • is a special case. VHS Heaven...or Hell by makelessnoise http://www.flickr.com/photos/makelessnoise/203559383/
- 20. Orphan Works Allan Stomann, creator unknown, courtesy Swinburne Image Bank, Swinburne University of Technology http://images.swinburne.edu.au/handle/1111.1/3343
- 21. Locating the copyright holder Before turning to the three step test under s200AB, you need to demonstrate you’ve taken reasonable steps to contact the copyright holder: “reasonable steps”– considerations: • Nature of the work – commercial or non- commercial • Age of the work • Published or unpublished work • Potential concerns of the creator – deceased, alive, interests of the estate • Extent of the planned use • Reasonable enquiries of others • Common sense
- 22. Orphan Works After taking reasonable steps to locate the copyright holder The use does: • Not conflict with normal exploitation of the work; • Not unreasonably prejudice the copyright holder; and • is a special case. Allan Stomann, creator unknown, courtesy Swinburne Image Bank, Swinburne University of Technology http://images.swinburne.edu.au/handle/1111.1/3343
- 23. Orphan Works – Large scale uses and “special case” Where collection consists predominantly of orphan works Scalable search: • Conduct reasonable enquiries into a proportion of the collection • “reasonable enquiries” - considerations from previous slide Eaglebrook School Archives, the 1960s by Eaglebrook School http://www.flickr.com/photos/eaglebrook/5549951920/
- 24. Orphan Works Reproducing orphan works ‘in good faith’. Swinburne University Orphan Works statement: ‘The University is continuing to endeavour to trace the copyright owner(s) and in the meantime this item has been reproduced here in good faith. We would be pleased to hear from copyright owner(s).’ Allan Stomann, creator unknown, courtesy Swinburne Image Bank, Swinburne University of Technology http://images.swinburne.edu.au/handle/1111.1/3343
Notes de l'éditeur
- Beginning of next session.
- What do we know so far... exceptions to copyright are not defences to infringement, rather they define the boundaries of the copyright holders’ rights by allowing people to use copyright works without permission for certain permitted purposes
- Educational institutions are permitted to copy a ‘reasonable portion’ of a works and TV or radio broadcasts for educational purposes – which is typically 10%. These licences are administered by CAL and Screenrights. Notably, uses of a reasonable portion of works for educational purposes are covered by the fair use exception in the United States and are free.
- Educational institutions are permitted to copy a ‘reasonable portion’ of a works and TV or radio broadcasts for educational purposes – which is typically 10%. These licences are administered by CAL and Screenrights. Notably, uses of a reasonable portion of works for educational purposes are covered by the fair use exception in the United States and are free.
- Format shifting – only between certain for - Books, newspapers and periodicals different format Photograph hardcopy format electronic format Analogue electronicmats
- Research or study – broadest of fair dealing exceptions – s40 – rigorous statutory guidelines on amounts that can be reproduced (for an approved course of study by enrolled external student of an educational institution). “reasonable portion” – work of at least 10 pages in a published edition – 10% of the number of pages in the edition; or (if divided into chapters) – a single chapter. In electronic form – 10% of the number of words or a single chapter. Comment on The Panel– would my use of an image of the panel be an infringement of copyright – consider whether it comes within fair dealing for criticism or review – is my use a critique of the work? Or merely illustrative? A Current Affair extract showing disguises used to protect identity of persons was not genuine criticism – poking fun cf. Days of Our Lives being a comment on loss of originality and novelty in the show. Sunday Program – drugs in sport – reporting news. Footy Show image of Russian president – for humorous purposes, not parody or satire.
- Research or study – broadest of fair dealing exceptions – s40 – rigorous statutory guidelines on amounts that can be reproduced (for an approved course of study by enrolled external student of an educational institution). “reasonable portion” – work of at least 10 pages in a published edition – 10% of the number of pages in the edition; or (if divided into chapters) – a single chapter. In electronic form – 10% of the number of words or a single chapter. Comment on The Panel– would my use of an image of the panel be an infringement of copyright – consider whether it comes within fair dealing for criticism or review – is my use a critique of the work? Or merely illustrative? A Current Affair extract showing disguises used to protect identity of persons was not genuine criticism – poking fun cf. Days of Our Lives being a comment on loss of originality and novelty in the show. Sunday Program – drugs in sport – reporting news. Footy Show image of Russian president – for humorous purposes, not parody or satire.
- Research or study – broadest of fair dealing exceptions – s40 – rigorous statutory guidelines on amounts that can be reproduced (for an approved course of study by enrolled external student of an educational institution). “reasonable portion” – work of at least 10 pages in a published edition – 10% of the number of pages in the edition; or (if divided into chapters) – a single chapter. In electronic form – 10% of the number of words or a single chapter. Comment on The Panel– would my use of an image of the panel be an infringement of copyright – consider whether it comes within fair dealing for criticism or review – is my use a critique of the work? Or merely illustrative? A Current Affair extract showing disguises used to protect identity of persons was not genuine criticism – poking fun cf. Days of Our Lives being a comment on loss of originality and novelty in the show. Sunday Program – drugs in sport – reporting news. Footy Show image of Russian president – for humorous purposes, not parody or satire.
- Research or study – broadest of fair dealing exceptions – s40 – rigorous statutory guidelines on amounts that can be reproduced (for an approved course of study by enrolled external student of an educational institution). “reasonable portion” – work of at least 10 pages in a published edition – 10% of the number of pages in the edition; or (if divided into chapters) – a single chapter. In electronic form – 10% of the number of words or a single chapter. Comment on The Panel– would my use of an image of the panel be an infringement of copyright – consider whether it comes within fair dealing for criticism or review – is my use a critique of the work? Or merely illustrative? A Current Affair extract showing disguises used to protect identity of persons was not genuine criticism – poking fun cf. Days of Our Lives being a comment on loss of originality and novelty in the show. Sunday Program – drugs in sport – reporting news. Footy Show image of Russian president – for humorous purposes, not parody or satire.
- For purposes that are “governmental” in nature. Government can authorise anyone (including non government libraries) to deal with copyright material on its behalf. Authorisation in writing, before or after material used Can take advantage of other exceptions, and not limited to ordinary deeming provisions (10% or 1 chapter) Traditionally activities of libraries/galleries etc not considered Governmental Little case law: House of Lords decision in Pfizer v Ministry of Health “supply of medicine to the national health service hospitals for use in the treatment of patients is ‘for the services of the Crown’ (Re Patent law application). Bowen CJ thought it possible this extends to services provided by the Crown or its servants to members of the public
- Library and archival copying provisions only available to libraries whose collections are available to the public (inc. by interlibrary loan). Under section 52, libraries may also publish an unpublished work where the creator simply is not known, the use will form part of a new work and meets the requirements of section 51. There is no equivalent exception for sound recordings or films. This is not an orphan works exception because it does not apply where the creator or current copyright holder is not locatable and only allows very limited uses. Preservation copying - Under the preservation copying exceptions in sections 51A for works and 110B for other subject matter, a library may make copies for the following purposes: First , to preserve manuscripts or original artistic works against loss, damage, deterioration or to provide a copy for research at another library. Second , to replace a published work that has been damaged, deteriorated, lost or stolen. Third , for ‘administrative purposes’ directly related to the care or control of the collection. This includes educating and training staff and volunteers on the management of the collection, but does not include a reproduction to add to the collection so as to make more copies available for lending. To make a perseveration copy, the library must not be able to obtain a copying within a reasonable time at an ordinary commercial price, or must have a good reason to make the copy. This does not include second hand copies of the work, or later editions of the work. A museum may only make very limited uses of preservation copies – it may not make the work otherwise available to the public. Key cultural institutions may use special preservation copying exceptions under sections 51B for works and 110BA and 112AA for other subject matter. Key cultural institutions have a legislative function of developing or maintaining a collection. Unlike the normal preservation exception, key cultural institutions may make up to 3 pre-emptive copies of material for the purpose of preserving against loss or deterioration for manuscripts, original artistic works, published works, first or unpublished copies of sound recordings, and first or unpublished copies of films. An authorised officer must make a declaration that they are satisfied that the work is of historical or cultural significance to Australia. Under section 52, libraries may also publish an unpublished work where the creator simply is not known, the use will form part of a new work and meets the requirements of section 51. There is no equivalent exception for sound recordings or films. This is not an orphan works exception because it does not apply where the creator or current copyright holder is not locatable and only allows very limited uses. Preservation copying - Under the preservation copying exceptions in sections 51A for works and 110B for other subject matter, a library may make copies for the following purposes: First , to preserve manuscripts or original artistic works against loss, damage, deterioration or to provide a copy for research at another library. Second , to replace a published work that has been damaged, deteriorated, lost or stolen. Third , for ‘administrative purposes’ directly related to the care or control of the collection. This includes educating and training staff and volunteers on the management of the collection, but does not include a reproduction to add to the collection so as to make more copies available for lending. To make a perseveration copy, the library must not be able to obtain a copying within a reasonable time at an ordinary commercial price, or must have a good reason to make the copy. This does not include second hand copies of the work, or later editions of the work. A museum may only make very limited uses of preservation copies – it may not make the work otherwise available to the public. Key cultural institutions may use special preservation copying exceptions under sections 51B for works and 110BA and 112AA for other subject matter. Key cultural institutions have a legislative function of developing or maintaining a collection. Unlike the normal preservation exception, key cultural institutions may make up to 3 pre-emptive copies of material for the purpose of preserving against loss or deterioration for manuscripts, original artistic works, published works, first or unpublished copies of sound recordings, and first or unpublished copies of films. An authorised officer must make a declaration that they are satisfied that the work is of historical or cultural significance to Australia.
- Under section 52, libraries may also publish an unpublished work where the creator simply is not known, the use will form part of a new work and meets the requirements of section 51. There is no equivalent exception for sound recordings or films. This is not an orphan works exception because it does not apply where the creator or current copyright holder is not locatable and only allows very limited uses.
- Preservation copying - Under the preservation copying exceptions in sections 51A for works and 110B for other subject matter, a library may make copies for the following purposes: First , to preserve manuscripts or original artistic works against loss, damage, deterioration or to provide a copy for research at another library. Second , to replace a published work that has been damaged, deteriorated, lost or stolen. Third , for ‘administrative purposes’ directly related to the care or control of the collection. This includes educating and training staff and volunteers on the management of the collection, but does not include a reproduction to add to the collection so as to make more copies available for lending. To make a perseveration copy, the library must not be able to obtain a copying within a reasonable time at an ordinary commercial price, or must have a good reason to make the copy. This does not include second hand copies of the work, or later editions of the work. A museum may only make very limited uses of preservation copies – it may not make the work otherwise available to the public. Since 2006, an institution may now make a reproduction of a published work even if a later edition of the work is commercially available (new s 51A(4)) Authorised officer must make a declaration stating: No new copy of the work can be obtained within a reasonable time at an ordinary commercial price Providing the reason for reproduction of that particular edition
- Key cultural institutions may use special preservation copying exceptions under sections 51B for works and 110BA and 112AA for other subject matter. Key cultural institutions have a legislative function of developing or maintaining a collection. Unlike the normal preservation exception, key cultural institutions may make up to 3 pre-emptive copies of material for the purpose of preserving against loss or deterioration for manuscripts, original artistic works, published works, first or unpublished copies of sound recordings, and first or unpublished copies of films. An authorised officer must make a declaration that they are satisfied that the work is of historical or cultural significance to Australia.
- Introduced 2006 – intended to cover uses of material that are for ‘socially useful purposes’ benefiting the broader Australian community
- Nine metre high sculpture, French-American artist Louise Bourgeois – also at Mori Tower, Tokyo
- Access is key goal driving activities of cultural institutions. But online access is the communication right, and in the case of unpublished works, the publication right. to enable cultural institutions to ‘access, and promote access to, copyright material in the online environment on reasonable terms, including having regard to the benefits of public access to the material and the provision of adequate remuneration to creators and investors’’. Apply the 3 step test. Ability to provide online access to materials depends predominantly on the economic and non-economic interests of the copyright holder.
- Access is key goal driving activities of cultural institutions. But online access is the communication right, and in the case of unpublished works, the publication right. to enable cultural institutions to ‘access, and promote access to, copyright material in the online environment on reasonable terms, including having regard to the benefits of public access to the material and the provision of adequate remuneration to creators and investors’’. Apply the 3 step test. Ability to provide online access to materials depends predominantly on the economic and non-economic interests of the copyright holder.
- I.e. Conversion of VHS to DVD – relevant consideration is, is the copyright holder currently selling the same film on DVD? This format shifting under s200AB would deprive them of a sale. NOTE: Circumvention of TPMs
- An orphan work is material that is protected by copyright, but the current copyright holder is unknown or un-locatable after reasonable enquiries, hence the work is thought of as ‘orphaned’. The current copyright holder could be the long dead author of the work, the author’s estate, the author’s heirs, a since defunct company and so on. Orphan works may be published or unpublished, and cover both works and other subject matter, including: letters, photographs, diaries, books, audio histories and home movies. Remember, orphan unpublished works may be in copyright perpetually
- Document the steps you’ve taken to track down the copyright holder – i.e. NLA s200AB checklist Hathi Trust – mass digitisation
- s200AB checklist Exercise using scenarios in groups
- British Library, UK Libraries and Archives Copyright Alliance endorse proportion searching Cf. HathiTrust
- Remember, use common sense – difference between using digitising image for online image bank, and say reproducing image on t-shirts to sell at the museum.