ALCC libraries copyright training 2012
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Part 2 - Flexible dealing, digital challenges

Part 2 - Flexible dealing, digital challenges

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  • Beginning of next session.
  • 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 But online access is the communication right, and in the case of unpublished works, the publication right.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 But online access is the communication right, and in the case of unpublished works, the publication right.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 Orphan works may be published or unpublished, and cover both works and other subject matter, including: letters, photographs, diaries, books, audio histories and home movies. Remember, orphan unpublished works may be in copyright perpetually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.
  • 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.
  • 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.
  • 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.
  • 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.
  • Refer to factsheet

ALCC libraries copyright training 2012 Presentation Transcript

  • 1. PART 2 FLEXIBLE DEALING DIGITAL CHALLENGESAmazon Kindle 2 Wireless Ebook Reader by goXunu reviewshttp://www.flickr.com/photos/43602175@N06/4069260433/
  • 2. 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
  • 3. 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.
  • 4. Providing online 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 Hesshttp://www.flickr.com/photos/peterhess/5806305467/
  • 5. 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
  • 6. Format shiftingWhere 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 makelessnoisehttp://www.flickr.com/photos/makelessnoise/203559383/
  • 7. Orphan WorksAllan Stomann, creator unknown, courtesy Swinburne Image Bank, Swinburne Universityof Technology http://images.swinburne.edu.au/handle/1111.1/3343
  • 8. Locating the copyright holderBefore turning to the three step test under s200AB, youneed to demonstrate you’ve taken reasonable steps tocontact 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
  • 9. Orphan WorksAfter 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
  • 10. 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/
  • 11. 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 Universityof Technology http://images.swinburne.edu.au/handle/1111.1/3343
  • 12. Managing digital content licences • Consortial purchasing – Electronic Resources Australia, CAUL/CEIRC • Individual subscriptions • Terms of use, prohibited/restricted usesSpace Shuttle Program, San Diego Air and Space Museum Archives,http://www.flickr.com/photos/sdasmarchives/6521818485/
  • 13. Example 1, licence terms of use:“Licensee, the Institutions and Authorized Users may use the Licensed Materials for purposes of research, education or other non-commercial use asfollows:Display. Licensee, the Institutions and Authorized Users shall have the right to electronically display the Licensed Materials.Digitally Copy. Licensee, the Institutions and Authorized Users may download and digitally copy a Reasonable Amount of the Licensed Materials.Print Copy. Licensee, the Institutions and Authorized Users may print a Reasonable Amount of the Licensed Materials.Recover Copying Costs. Licensee and the Institutions may charge a reasonable fee to cover costs of copying or printing portions of Licensed Materialsfor Authorized Users.Course Packs. Licensee, the Institutions and Authorized Users may use a Reasonable Amount of the Licensed Materials in the preparation of CoursePacks or other educational materials.Electronic Reserve. Licensee, the Institutions and Authorized Users may use a Reasonable Amount of the Licensed Materials for use in connectionwith specific courses of instruction offered by Licensee.Analysis. Authorized Users shall be permitted to extract or use information contained in the Licensed Materials for educational, scientific, or researchpurposes, including but not limited to extraction and manipulation of information for the purposes of illustration, explanation, example, comment,criticism, teaching, research, or analysis.Scholarly Sharing. Authorized Users may transmit to a third party colleague in hard copy or electronically, minimal, insubstantial amounts of theLicensed Materials for personal use or scholarly, educational, or scientific research or professional use but in no case for resale or commercialpurposes. In addition, Authorized Users have the right to use, with appropriate credit, figures, tables and brief excerpts from the Licensed Materialsin the Authorized User’s own scientific, scholarly and educational works.Inter-Library Loan (“ILL”). The Institutions shall be permitted to use Reasonable Amounts of the Licensed Materials to fulfill occasional requests fromother, non participating institutions, a practice commonly called Inter-Library Loan. Customer agrees to fulfill such requests in compliance withSection 108 of the United States Copyright Law (17 USC §108, “Limitations on exclusive rights: Reproduction by libraries and archives”) and theGuidelines for the Proviso of Subsection 108(2g)(2) prepared by the National Commission on New Technological Uses of Copyrighted Works(CONTU).”
  • 14. Example 2, licence terms of use:“(a) You, subject to clause 4 below, may: (i) Allow Authorised Users to have access to the Work from the Publishers Server via the Secure Network; (ii) Access, search and view the Work for the purpose of internal marketing or testing or for training Authorised Users or groups of Authorised Users. (b) Authorised Users may, subject to clause 4 below: (i) Access, search and view the Work for personal use only; (ii) copy and paste one chapter of each title in the collection in question, or up to 5% of the pages from the total collection, whichever is the greater, for personal use only, during any given four-week period, unless otherwise stated in acollection; (iii) make printed copies of one chapter or up to 20% of the pages from the total collection, whichever is greater, for personal use, during any given four-weekperiod, unless otherwise stated in a collection. (c) Nothing in this Agreement shall in any way exclude, modify or affect any of Your statutory rights under applicable copyright law.”
  • 15. Other digital challenges•Accessing withdrawn/retracted works•Contract overriding copyright exceptions•Mass digitisation•Collecting digital-borne material
  • 16. The ‘five year plan’ for copyright law reformAustralian Law Reform Commissioninquiry into copyrightWIPO discussions on exceptions forlibraries and archivesTrans-Pacific Partnership Agreement
  • 17. Thank youEllen BroadCopyright Law and Policy Adviser t: 02 6262 1273Australian Libraries Copyright Committee w: digital.org.auAustralian Digital Alliance e: ebroad@nla.gov.au