Copyright

Copyright glossary

Acknowledging sources

You must acknowledge sources in one of two ways:

  • in the manner specified by the author(s) of the material in a way that is reasonable in the circumstances (section 195 Copyright Act); or
  • by providing "clear and reasonably prominent" identification of the author "on each reproduction of the work" (sections 195AA - 195AB Copyright Act).

With films, you will need to provide "clear and reasonably prominent" acknowledgements for principal producers, directors and screenwriters.

If you do not acknowledge the authors, and they take legal action, you will need to prove that "it was reasonable in all the circumstances not to identify the author". The Copyright Act 1968 provides a list of matters that the courts would take into account in considering whether such an omission was reasonable. In most circumstances it would be unwise to rely on such a defence.

Adaptation

Adaptation means:

  • in relation to a literary work in a non dramatic form a version of the work (whether in its original language or in a different language) in a dramatic form
  • in relation to a literary work in a dramatic form a version of the work (whether in its original language or in a different language) in a non dramatic form
  • in relation to a literary work being a computer program—a version of the work (whether or not in the language, code or notation in which the work was originally expressed) not being a reproduction of the work
  • in relation to a literary work (whether in a non dramatic form or in a dramatic form):
    • a translation of the work; or
    • a version of the work in which a story or action is conveyed solely or principally by means of pictures
  • in relation to a musical work—an arrangement or transcription of the work.

Anthologies

A collection of literary or dramatic works of varied authorship.

Allowable format

For the purpose of our music licence, allowable format means:

  • in relation to audio recordings, cassettes, compact discs, CD Recordable and DVD Recordable and IT system drives; and
  • in relation to video recordings, video cassettes in the VHS or Betamax formats, DVD Recordable and CD Recordable and IT system drives.

Artworks

Artistic works typically include paintings, sculptures, drawings, engravings photographs, buildings, models of buildings, and works of artistic craftsmanship.

Communicate (emails, faxes and webpages)

Communicate means to make available online or electronically transmit (whether over a path or combination of paths, provided by a material substance or otherwise) a work or other subject matter.

Copyright owners have an exclusive right to communicate their work to the public. Most emails and faxes sent in the course of work would constitute a communication to the public. Making materials available online is also communication to the public.

You may communicate any portion of a work you are entitled to copy for teaching purposes, so long as:

  • you only communicate the material to your students for teaching purposes
  • and you attach a notice

You must use the Electronic Readings Service if you wish to make material available online.

Conflict with a normal exploitation (s.200AB)

The Copyright Act states that the term ?conflict with a normal exploitation? has the same meaning as Article 13 of the TRIPS Agreement [#trips], which states:

?Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.?

The Copyright Amendment Bill 2006 Explanatory Memorandum states:

?The questions to be considered under this condition are whether the use closes off ways that copyright holders normally extract economic value from copyright in the Australian market or enters into economic competition with those ways, thereby depriving copyright holders of significant or tangible commercial gains. Forms of exploitation which, with a certain degree of likelihood, could acquire considerable economic or practical importance may also be considered.?

Criticism and review

The courts used the Macquarie dictionary to define criticism and review:

Criticism is "?"1. The act or art of analysing and judging the quality of a literary or artistic work, etc.: literary criticism. 2. The act of passing judgment as to the merits of something... 4. A critical comment, article or essay; a critique."?" [ Beaumont J. BRIAN KELVIN DE GARIS and MATTHEW MOORE And: NEVILLE JEFFRESS PIDLER PTY LIMITED No. G1319 of 1988 FED No. 352 Copyright 18 IPR 292 (1991) 20 IPR 605 (1990) 37 FCR 99]

Review is "?"1. A critical article or report, as in a periodical, on some literary work, commonly some work of recent appearance; a critique..."?" [ Beaumont J. BRIAN KELVIN DE GARIS and MATTHEW MOORE And: NEVILLE JEFFRESS PIDLER PTY LIMITED No. G1319 of 1988 FED No. 352 Copyright 18 IPR 292 (1991) 20 IPR 605 (1990) 37 FCR 99]

Dealing

In relation to moral rights, to deal with a copyright protected material means to sell, let for hire, by way of trade offer or expose for sale or hire, exhibit in public, or distribute or publish the material.

Derogatory treatment

The creators of literary, dramatic, musical works and films have the right not to have their work subjected to derogatory treatment. Derogatory treatment includes:

  • doing anything that results in a material distortion, destruction, mutilation or alteration to the material that is prejudicial to the author's* honour or reputation; or
  • doing of anything else in relation to the material that is prejudicial to the author's* honour or reputation.

In addition to the above two points, the creators of artistic works also have the right not to have their work destroyed or exhibited in public in a manner or place that is prejudicial to their honour or reputation.

If you do subject material to derogatory treatment, and the creators take legal action, you will need to prove that the derogatory treatment was reasonable. The Copyright Act 1968 provides a list of matters that the courts would take into account in considering whether the treatment was reasonable.

Normal academic usage involving either criticism or review is highly unlikely to constitute unreasonable derogatory treatment. As a rule of thumb, if you feel uncomfortable about the way you are using the material, it would be best to contact the University Copyright Officer for advice.

* Please note: for films, the authors are the principal producers, directors, and screenwriters.

Dramatic works

A dramatic work includes:

  • a choreographic show or other dumb show; and
  • a scenario or script for a cinematograph film;

but does not include a cinematograph film as distinct from the scenario or script for a cinematograph film.  

Economic rights

Under the Copyright Act1968 copyright owners have a number of exclusive rights which they may choose to assign, transfer or licence to third parties.

For literary, dramatic and musical works, copyright is the exclusive right to:

  • reproduce the work in a material form;
  • publish the work;
  • perform the work in public;
  • communicate the work to the public;
  • make an adaptation of the work; and
  • authorise the doing of any of the above acts.

For artistic works, copyright is the exclusive right to:

  • reproduce the work in a material form;
  • publish the work;
  • communicate the work to the public; and
  • authorise the doing of any of the above acts.

For sound recordings, copyright is the exclusive right to:

  • make a copy of the sound recording;
  • cause the recording to be heard in public;
  • communicate the recording to the public;
  • to enter into a commercial rental arrangement in respect of the recording; and
  • authorise the doing of any of the above acts.

For cinematograph films, copyright is the exclusive right to:

  • make a copy of the film;
  • cause the film to be seen or heard in public;
  • communicate the film to the public; and
  • authorise the doing of any of the above acts.

For television and sound broadcasts, copyright is the exclusive right to:

  • make a film of the broadcast, or a copy of that film;
  • make a sound recording of the broadcast, or a copy of that sound recording;
  • to rebroadcast the television or sound broadcast; and
  • authorise the doing of any of the above acts.

For published editions of works, copyright is the exclusive right to:

  • make a facsimile copy of the edition; and
  • authorise the doing of any of the above acts.

Educational purposes

Where a copy of the whole or part of a work is made, the following are considered "educational purposes":

  • where the purpose is connected with a particular course of instruction provided by an educational institution; or
  • where the purpose is to include the copy in the institution?s library collection.

For the purpose of the music licence "educational purposes" means the sole purpose of using in connection with a particular course of instruction or course of study of the Participating University, including the necessary administration and assessment of that course of instruction or study, but not including commercial activities and commercial research.

False attribution

The creators of artistic, literary, dramatic, musical works and films have the right not to have their works falsely attributed.

False attribution of literary, dramatic and musical works involves:

  • falsely implying that another person created the work;
  • falsely implying that the creator was responsible for adaptations of their work;
  • authorising an act of false attribution; or
  • dealing with, communicating the work to the public, or performing a work in public if you know that any of the above points applies.

False attribution of artistic works involves:

  • falsely implying that another person created the work;
  • falsely implying that the creator was responsible for adaptations of their work;
  • authorising an act of false attribution; or
  • dealing with or communicating the work to the public if you know that any of the above points applies.

False attribution of films involves:

  • falsely implying that another person was the director, producer or screenwriter of the film;
  • authorising an act of false attribution; or dealing with or communicating the work to the public if you know that either of the above points applies.

Films

The Copyright Act 1968 defines a cinematograph film as: "?the aggregate of the visual images embodied in an article or thing so as to be capable by the use of that article or thing:

  • (a) of being shown as a moving picture; or
  • (b) of being embodied in another article or thing by the use of which it can be so shown; and includes the aggregate of the sounds embodied in a sound-track associated with such visual images."

Films will typically contain several layers of copyright, for example, copyright in the cinematographic film and pre-existing sound recordings, and copyright in the literary, dramatic, and musical works.

The five fairness factors

You can only copy the items listed below, for the purpose of research or study, if your actions amount to a 'fair dealing':

The Copyright Act does not define what makes a dealing fair, but rather only prescribes a list of matters that the courts would need to consider in the event of a legal dispute.  These matters include:

  • the purpose and character of the dealing
  • the nature of the material
  • the possibility of obtaining the material commercially
  • the effect of the dealing upon the potential market for the material
  • the amount copied in relation to the whole of the material

All five of the above fairness factors need to be considered. As a very rough guide, the following considerations may be relevant in helping you to determine whether your dealing with the material is fair:

  • Is all of the copying you wish to do genuinely for study and research? If not your dealing will not be fair.
  • Are you simply copying the material, or are you transforming it in some way, for example, by using it in a way that creates something new? All else being equal it is less likely that your dealing will be fair if you are simply copying the material.
  • Is the material unpublished, or is it a fictional work? If so, all else being equal it is less likely to be fair.
  • Is the material commercially available? If so, all else being equal it is unlikely to be a fair dealing.
  • Will your actions have an adverse affect on the copyright owner?s market? If so, it is unlikely that your dealing would be fair.
  • How much are you copying? All else being equal, the more you copy the less likely it is that it will be fair.

The fair dealing provisions are quite complex, and should only be relied upon if you are sure that the copying you wish to do is allowable under the fair dealing provisions.

Literary works

Literary works include almost all text based material, such as books, pamphlets, or web pages. Names, titles and slogans are not usually protected by copyright as a literary work. However anything that was not copied from another source that is longer than a few sentences will most likely protected as an original literary work, unless the copyright in the work has expired (see the Australian Copyright Council's information sheet). Other things that are protected as a literary work include computer programs, and tables or compilations expressed in words, figures or symbols.

Maintaining and operating a Library or Archive pursuant to section 200AB

The Copyright Amendment Bill 2006 Explanatory Memorandum states:

?This condition would encompass the internal administration of the library or archives as well as providing services to users. Further, the use must not be partly to obtain a commercial advantage. This would not necessarily preclude use on a cost recovery basis.?

Moral rights

Under the Copyright Act 1968 creators of works (artistic, literary, dramatic and musical works) and films have a group of rights collectively referred to as "moral rights", which includes:

Other things to note about moral rights include:

*Please note: the director, producer and screenwriter's right not to have their film subjected to unreasonable derogatory treatment expires after their death.

Music licence

In June 2005 the AVCC finalised a new music licence agreement between 33 of Australia's universities (including UOW) and a number of music societies, including the Australasian Performing Right Association (APRA), Australasian Mechanical Copyright Owners' Society (AMCOS), the Phonographic Performance Company of Australia (PPCA) and the Australian Record Industry Association (ARIA). Generally speaking, the music licence allows staff to copy, communicate and perform music covered by the agreement for educational and other purposes.

APRA, AMCOS and the PPCA are non-profit organisations responsible for collecting and distributing music copyright royalties. For information about copyright collecting societies see the Australian Copyright Council's information sheet.

ARIA is an industry association whose role includes licensing music, as well as other activities.

Parody and satire

The Copyright Act does not define "parody" or "satire". However, as a general guide it would be reasonably safe to apply the Macquarie Dictionary's definition, which has been used by the courts previously to define the terms ?study? and ?research?.

?Parody? 1. a humorous or satirical imitation of a serious piece of literature or writing. 2. the kind of literary composition represented by such imitations. 3. a burlesque imitation of a musical composition. 4. a poor imitation; a travesty?

?Satire? 1. the use of irony, sarcasm, ridicule, etc., in exposing, denouncing, or deriding vice, folly, etc. 2. a literary composition, in verse or prose, in which vices, abuses, follies, etc., are held up to scorn, derision, or ridicule. 3. the species of literature constituted by such composition.?

Source: A Delbridge, JRL Bernard, D Blair, S Butler, P Peters, E Yallop (editors), Macquarie: Australia?s National Dictionary, Revised Third Edition, 2003

Periodical publications

A work can be considered a periodical publication if it has, or is clearly intended to have new issues published at regular intervals; and contains discrete articles that are able to stand alone from the rest of the publication.

Most journals, commercial newspapers, and some magazines, would fall under this definition, as would websites modelled on the content-format used by newspapers or, to a less clear extent, magazines.

Print disability

A person with a print disability for the purpose of the Copyright Act includes:

  • a person without sight; or
  • a person whose sight is severely impaired; or
  • a person who is unable to hold or manipulate books or to focus or move his or her eyes; or
  • a person with a perceptual disability.

Profit

You must not sell or otherwise supply material copied and/or communicated in reliance upon Part VA and Part VB of the Copyright Act 1968 (i.e. copying broadcasts, artistic, literary, dramatic or musical works for teaching purposes) for a financial profit.

Profit does not include HECS or standard course fees. Staff must not charge students more than it costs to produce packages of materials copied for teaching purposes.

Regardless of whether a profit is or is not made, staff must not supply materials with the intention of making a profit.

Profit (s.200AB)

The Copyright Amendment Bill 2006 Explanatory Memorandum states that ?This would not necessarily preclude use on a cost recovery basis.?

Providing educational instruction pursuant to section 200AB

The Copyright Amendment Bill 2006 Explanatory Memorandum states:

?The use must be made for the purpose of giving educational instruction, which would include classroom and remote teaching. The use must also not be made partly for a commercial advantage. This would not necessarily preclude use on a cost recovery basis.?

Published editions

Published edition copyright is not defined in the Copyright Act1968, but has been defined by the courts as "the presentation embodied in the edition", and includes things like the typographical layout, and the "juxtaposition of text and photographs and use of headlines".

Screenrights licence

Screenrights is a non-profit organisation responsible for collecting and distributing broadcast copyright royalties. For information about copyright collecting societies, see the Australian Copyright Council's information sheet.

Sound recordings

A sound recording means the aggregate of sounds embodied in a disk, tape, paper or other storage device.

 Special Case (s.200AB)

The Copyright Act states that the term ?special case? has the same meaning as Article 13 of the TRIPS Agreement, which states:

?Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.?

The Copyright Amendment Bill 2006 Explanatory Memorandum states the use should be ??narrow in a quantitative as well as qualitative sense.?

Statutory licence

UOW pays a blanket licence to Screenrights and the Copyright Agency Limited (CAL), which entitles UOW staff to copy limited portions of some material for the purpose of teaching students, without staff having to obtain the copyright owners’ permission. We are surveyed by both of those organisations roughly once every three years for material that we have copied in reliance upon our statutory licences. The information collected during the sampling period is then used by Screenrights and CAL to help them to redistribute the licence income back to the copyright owner in the form of royalties.

Study and research

The courts used the Macquarie dictionary meanings to define study and research:

"?"research" may be defined as - "1. diligent and systematic enquiry or investigation into a subject in order to discover facts or principles: research in nuclear physics..."?" [ Beaumont J. BRIAN KELVIN DE GARIS and MATTHEW MOORE And: NEVILLE JEFFRESS PIDLER PTY LIMITED No. G1319 of 1988 FED No. 352 Copyright 18 IPR 292 (1991) 20 IPR 605 (1990) 37 FCR 99]

Study is "?"1. application of the mind to the acquisition of knowledge, as by reading, investigation or reflection. 2. the cultivation of a particular branch of learning, science, or art: The study of law. 3. A particular course of effort to acquire knowledge: to pursue special medical studies. ... 5. a thorough examination and analysis of a particular subject..."?" [ Beaumont J. BRIAN KELVIN DE GARIS and MATTHEW MOORE And: NEVILLE JEFFRESS PIDLER PTY LIMITED No. G1319 of 1988 FED No. 352 Copyright 18 IPR 292 (1991) 20 IPR 605 (1990) 37 FCR 99]

Any copies you make for the purpose of assembling resources to enable you to complete a course at UOW in your capacity as a student would most likely be for the purpose of study or research. Similarly, assembling resources to enable you to write an academic paper would most likely be for the purpose of study or research.

TRIPS Agreement

The TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights) is part of a suite of international trade agreements negotiated via the World Trade Organisation.

University Event

For the purpose of our music licence "university event" means an event at the Participating University (or some other venue) organised or authorised by the Participating University including a live musical performance by students or staff.

Unreasonably prejudice the legitimate interests (s.200AB)

The Copyright Act states that the term ?unreasonably prejudice the legitimate interests? has the same meaning as Article 13 of the TRIPS Agreement, which states:

?Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.?

The Copyright Amendment Bill 2006 Explanatory Memorandum states:

?This condition requires an assessment of the legitimate economic and non-economic interests of the copyright owner.?

Using material to assist people with disabilities pursuant to section 200AB

The Copyright Amendment Bill 2006 Explanatory Memorandum states:

?6.57 New sub-s 200AB(4) provides for a use made by, or for, a person with a disability. Where a person is unable to read, view or hear a work or other subject matter in a particular form due to disability (or a combination of disabilities) the person may make a use of that work ? eg to make an accessible version.

6.58 The use may be made by a person who has any disability that causes difficulty for the person in reading, viewing or hearing the work or other subject-matter in a particular form. This would include where the work is difficult (or impossible) for that person to access due to a disability affecting his or her sight, hearing, perception or dexterity.

6.59 The use may also be by another person in order to assist the person with disability. This would allow uses to be made for the person with disability by family members, friends or organisations. The use must be made for the purpose of the person obtaining a reproduction or copy of the work or other subject-matter in another form, or with a feature, that reduces or overcomes the difficulty in reading, viewing or hearing the work in the original form. The use must also not be made partly for a commercial advantage. This would not necessarily preclude a use made on a cost recovery basis.

6.60 It should be noted that due to new sub-s 200AB(6) (outlined below) this exception does not apply if other specific exceptions and statutory licences apply to the act and are not overtaken by s 200AB. Eg, where an act is permitted under a statutory licence for institutions assisting persons with disability, the institution cannot rely on this exception as a way of avoiding any obligations to pay remuneration by failing to meet a condition of the statutory licence.?