What is copyright?

Copyright is a bundle of rights given by law to the creator of a work for a period of time. It is designed to encourage creation by giving the copyright owner the right to control how their work is used and to derive an income from it. Australian copyright law is contained in the Copyright Act 1968.

What does copyright protect?

Who owns copyright?

When can I use copyright material?

What are moral rights under copyright?

Copyright and disability access

Copyright and plaza events

What are the rights of copyright owners?

How long does copyright last?

What does insubstantial portions mean?

What are flexible dealings under section 200AB?

What is personal use?

What is copyright infringement?

What does copyright protect?

Copyright protects all original works that are recorded in a material form, including both print and electronic material. It does not protect ideas. Copyright applies automatically as soon as something is recorded in material form, it does not need to be registered or published.

The Copyright Act divides material into categories of works and subject matters other than works, these are:

Works

Subject matter other than works

Literary works e.g.:

Books, journal articles, short stories, poems, manuals, song lyrics, tables or compilations expressed in words, figures, symbols, computer programs, newspaper articles, reports, sets of instructions, any practical or information lists.

Films e.g.:

Documentaries, feature and animated films, TV programs (including commercials), video tapes and cassettes and other fixed or recorded sequences of visual images.

Dramatic works e.g.:

Plays, television, radio and film scripts, scenarios and other works intended to be performed such as choreographic notations, even where the work does not include spoken words e.g. mime, dance.

Sound recordings e.g.:

In any format, e.g. mp3, CDs, vinyl records, cassette tapes. Sound Recordings include both recorded music as well as recorded words and sounds.

Musical works e.g.:

Written or notated music including musical scores for opera, operetta, orchestral, ensemble, band and other musical performances as well as music for songs, jingles and incidental music.

Broadcasts e.g.:

Television and radio programs. This is separate to the copyright in the films, music and other material which is transmitted.

Artistic works e.g.:

Paintings, drawings, photographs, engravings, sculptures, a work of artistic craftmanship, maps, cartoons, architectural plans.

Published editions e.g.:

Copyright in the typographical layout of a published edition of a literary, dramatic, musical or artistic work (but NOT the underlying work itself).

Who owns copyright?

It can be difficult determining who owns copyright in a work but these are some general things to consider:

The creator of the material is usually the first owner of the copyright.
An employer is usually the owner of copyright in material created as part of a person's employment. Flinders staff should read the Intellectual Property policy.
There can be more than one copyright owner.
A copyright owner can assign their copyright to another party.
A copyright owner can license their copyright to another party for certain purposes for a certain period.
The copyright owner of a commissioned work will usually depend on the agreement between the creator and commissioner. There are special provisions for commissioned photographs.
When a copyright owner dies, the copyright ownership will generally pass to their estate.

When can I use copyright material?

Whilst copyright protects the rights of the copyright owner, it also seeks to promote the free flow and exchange of information by providing a number of exceptions for the use of copyright material. The context of the situation will determine if you can use the material and how you can use it. Almost all of the exceptions will have some conditions and limitations so it is important that you look at the details to determine if they allow for your intended use.

Flinders University staff and students can use material if:

You own the copyright for the work.
Flinders University owns the copyright and you wish to use the material for Flinders University teaching or business purposes.
Copyright in the work has expired.
You are using an insubstantial portion.
You have permission from the copyright owner for your intended use.
You have an express licence to use the work, e.g. a contract, creative commons licence, website conditions.
Your proposed use is a fair dealing, e.g. for research or study, criticism or review, parody or satire, reporting the news.
You are reproducing material that you own for your personal use.
You are reproducing material in an accessible format to assist a student with a disability.
Your use is for the educational purposes of Flinders University and is allowed under the statutory licence provisions.
You are copying, recording, or performing music for educational purposes or at a Flinders University event as covered by the music licence.
Your proposed use is a special case as defined under section 200AB.

What are moral rights under copyright?

Moral rights are additional to the exclusive rights (e.g. publishing, copying) and are given to creators of works and films, and performers of live and recorded performances. These rights are defined in the Copyright Act but are separate to the rights of the copyright owner. Unlike copyright, moral rights cannot be given away (e.g. licensed or assigned) and only apply to individuals (e.g. not corporations or governments).

The three moral rights are

the right of attribution;
the right not to be falsely attributed;
the right of integrity

In practice this means you must correctly attribute or credit the source of any material that you use and not treat it in a derogatory way. If you fail to cite the source, incorrectly cite it to someone else, or treat it in a way which is prejudicial to the honour or reputation of the author or performer then you have likely infringed their moral rights.

Copyright and disability access

The Copyright Amendment (Disability Access and Other Measures) Act came into effect on the 22 December 2017 and introduced two new exceptions for access by persons with a disability:

Fair dealing for purpose of access by persons with a disability;
Use of copyright material by organisations assisting persons with a disability.

These simplified exceptions ensure more equitable access to copyright material for persons with a disability and replace the disability provisions in the educational statutory license (Part VA & VB) and the special case exception (200AB).

A person with a disability is defined as a anyone who suffers from a disability that results in them experiencing difficulty in reading, viewing, hearing or comprehending copyright material in a particular form.

Fair dealing for purpose of access by persons with a disability

Copyright material may be used for the purpose of providing an accessible version to a person with a disability. This provision can be relied on by the person with a disability, or a person acting on their behalf.

The dealing must still be deemed to be fair with regard to the following four factor test:

the purpose and character of the dealing;
the nature of the copyright material;
the effect of the dealing upon the potential market for, or value of, the material; and
if only a part of the material is dealt with - the amount and substantiality of the part dealt with, taken in relation to the whole material.

It could cover such acts as making an electronic copy of a physical text which can be read by screenreader software, or adding captions to an audio-visual work.

Use of copyright material by organisations assisting persons with a disability

This exception allows the University to make accessible format copies of material for the sole purpose of assisting a person with a disability. This can only be relied on if the material is not commercially available in the format required.

Copyright and plaza events

The plaza and screen may be booked for events. It is the responsibility of the organisers of events that they comply with copyright and acquire any required licenses.

The following information is provided to help you determine when it is okay to use copyright material in the plaza and when you will need to obtain a license. Please contact the copyright officer if you have any questions.

Films

Screening films in the plaza is considered to be a public performance, this is an exclusive right of the copyright owner. You will need to obtain a non-theatrical public performance license from the distributor in Australia before the film can be screened.

The two main distributors of film in Australia are Roadshow PPL and Amalgamated Movies. The National Film and Sound Archive also offer a range of screening loans with a non-theatrical license.

The distributors can supply you with a copy of the film to screen or you may use your own copy after obtained a non-theatrical license. If you intend to use your own copy it must be legitimate, e.g. not an infringing copy downloaded from the internet. The license conditions of subscription services, such as Netflix and Stan, generally prohibit public performance.

You would usually also need a separate license for the music featured in films however the University already holds the necessary public performance licenses which covers music from the super screen.

Images

You must have the permission of the copyright owner to display images on the screen. This includes images used as part of digital signage and presentations. The majority of online images are copyright*, even when they don't contain a copyright statement. However there are also many images available online now which are realised under Creative Commons licenses, these allow you to use the images in certain ways without asking for permission. You must still abide by the license conditions such as attributing the creator or only using the image for non-commercial purposes if specified. Use CC Search to find Creative Commons images.

If you wish to use an image of a copyright artwork* you generally need to obtain a license. Viscopy is the main visual arts collecting society in Australia that can provide a license.

*images and artworks where the creator died before 1955 are in the public domain and do not require a license

Music

The University holds multiple licenses which cover the majority of uses of music in the plaza. We hold a license for playing music from the super screen, this covers uses such as music which is included in films or television. We are also party to the Universities music license which allows us to play live or recorded music at free University events. A university event is defined as being authorised by the University and should include most events organised by staff.

You will need to obtain separate music licenses if you plan to charge for your event. This would include a license from APRA to cover the copyright in the musical composition and a license from PPCA to cover the copyright in the sound recording.

Television

Screening live television, including films, is permitted. The includes free to air television and Foxtel for which the University holds a license. The license conditions of catch up television services, such as ABC iView and SBS On Demand, generally prohibit public performance.

You would usually also need a separate license for the music featured in television however the University already holds the necessary public performance licenses which covers music from the super screen.

YouTube

Screening YouTube videos on the super screen would constitute a public performance and would therefore require the permission of the copyright owner. Videos which are realised under a Creative Commons license would be permitted to be played as long as the license conditions are followed, e.g. attribution is provided. According to YouTube's terms of service videos are only allowed to be played directly from YouTube or from their embeddable player unless a download option is explicitly available.

What are the rights of copyright owners?

Copyright ownership is different from the physical ownership of a work. You may own a physical work but the copyright owner maintains a range of exclusive rights. These vary depending on the category of the copyright material but in general the copyright owner has the exclusive right to:

reproduce/copy the work;
publish the work;
perform the work in public or cause it to be seen/heard in public;
communicate (make available online) the work to the public;
make adaptations of the work.

The Copyright Act also grants additional moral rights.

How long does copyright last?

The duration of copyright generally lasts the life of the creator, plus 70 years after their death. This can vary depending on the type of material, the copyright owner, and its publication status. When copyright expires in a work it cannot be renewed and the work is considered to be in the public domain.

Copyright terms were amended under the Copyright Amendment (Disability Access and Other Measures) Act 2017. This came into effect 1 January 2019. Please refer to the Department of Communications and the Arts website for a comprehensive overview of copyright terms.

What does insubstantial portions mean?

Insubstantial portions can be reproduced without needing the permission of the copyright owner. The use of insubstanital portions are not restricted to a particular purpose however it is important to be aware that substantiality refers not just to the quantity of the portion but also to quality. This means that even if a portion is small if it is key or central to the work then it is likely to be considered substantial. For example a chorus of a song or a well known line from a movie may be considered substantial despite being a small portion of the overall work.

You must attribute the creator of the work even when using an insubstantial portion. This is a moral right.

If you wish to use more than an insubstantial portion of a work, depending on the purpose, you may be able to rely on one of the other exceptions in the Copyright Act. If no exceptions are available you can seek permission from the copyright owner.

What are flexible dealings under section 200AB?

200AB in the Copyright Act allows for the use of copyright materials without the copyright owners permission in special cases. This provision can only be used if no other exception applies. Cost recovery is permitted, but no commercial advantage may be obtained.

200AB applies to the following circumstances. It can be used by or on behalf of a:

library or archive, for the purpose of maintaining or operating the library or archive;
educational institution, for the purpose of giving educational instruction;

In addition, the use must comply with the following three-step test:

it is a special case;
it does not conflict with the normal exploitation of the work;
it does not unreasonably prejudice the legitimate interests of the copyright owner.

Material copied under this section must display the required copyright warning notice.

The use of 200AB needs to be assessed on a case by case basis. If you wish to use this provision please contact the copyright officer.

What is personal use?

There are limited private use provisions in the Copyright Act. These provisions include time shifting television or radio programs, space shifting sound recording, and format shifting other types of material. These provisions allow material to be copied in full.

Format and space shifting

The following conditions must be adhered to for all format and shape shifting.

You must own a copy of the material being reproduced.
The copy you own must be a legal copy (i.e. not pirated).
The purpose of the copying must be for your own private use.
Copies cannot be sold, hired, traded or given away, but can be lent to members of your family or household.
Copies must not be communicated, performed in public or broadcast.
You must not dispose of the original material copied.
Any incidental temporary copies made as part of the technical process should be destroyed as soon as practical.
It is not permitted to circumvent a technological protection measure.

Format shifting books, newspaper or periodical publications, photographs or films

The format shifting provisions apply to specific materials. Assuming the above conditions are meet they allow you to:

copy a book, newspaper, periodical publication or photograph into a different format;
copy a film on videotape into an electronic format

These provisions only allow for one copy to be made and the format must be different from the original, i.e. hardcopy to electronic or vice versa. For example, you can scan a hardcopy photograph into an electronic format but you cannot then print copies of the photograph.

Time shifting

You may record a television or radio program for you, and your family or household, to view or listen to at a later time.

This includes pay television programs as long as you have a current paid subscription to the service. Recordings may be made in any format.

The intention of the provision is to allow you to view or listen to the broadcast at a more convenient time, it does not allow you to keep the recording indefinitely for continued use. In addition you must not sell, hire, trade, give away, communicate, perform in public, or broadcast the recording.