Part 2 - Flexible dealing, digital challenges

1. PART 2
FLEXIBLE DEALING
DIGITAL CHALLENGES
Amazon Kindle 2 Wireless Ebook Reader by goXunu reviews
http://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 Hess
http://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 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/

7. Orphan Works
Allan Stomann, creator unknown, courtesy Swinburne Image Bank, Swinburne University
of Technology http://images.swinburne.edu.au/handle/1111.1/3343

8. 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• Published or unpublished work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

9. 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

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 University
of 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
uses
Space 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 as
follows:
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 Materials
for Authorized Users.
Course Packs. Licensee, the Institutions and Authorized Users may use a Reasonable Amount of the Licensed Materials in the preparation of Course
Packs or other educational materials.
Electronic Reserve. Licensee, the Institutions and Authorized Users may use a Reasonable Amount of the Licensed Materials for use in connection
with 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 research
purposes, 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 the
Licensed Materials for personal use or scholarly, educational, or scientific research or professional use but in no case for resale or commercial
purposes. In addition, Authorized Users have the right to use, with appropriate credit, figures, tables and brief excerpts from the Licensed Materials
in 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 from
other, non participating institutions, a practice commonly called Inter-Library Loan. Customer agrees to fulfill such requests in compliance with
Section 108 of the United States Copyright Law (17 USC §108, “Limitations on exclusive rights: Reproduction by libraries and archives”) and the
Guidelines 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 Publisher's 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 a
collection;
(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-week
period, 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 reform
Australian Law Reform Commission
inquiry into copyright
WIPO discussions on exceptions for
libraries and archives
Trans-Pacific Partnership Agreement

17. Thank you
Ellen Broad
Copyright Law and Policy Adviser t: 02 6262 1273
Australian Libraries Copyright Committee w: digital.org.au
Australian Digital Alliance e: ebroad@nla.gov.au