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A User's Guide - Australian Libraries Copyright Committee

1. making sure if reasonable and practicable copies have information about the copyright holder attached using only as much of the material that you need The Use Is a Special Case If you have proceeded through all the other steps it is very likely that your use is a special case That is this hurdle should not be too difficult to satisfy The Explanatory Memorandum for section 200AB states this step is intended to ensure that the use is narrow in a quantitative as well as qualitative sense In order to do this section 200AB requires you to consider all the other steps and in the context of these steps decide if the use is special At this step you will be checking that your intended use is narrow specific and identified If you have gone through all the previous steps and made appropriate adjustments to your use accordingly for example using only how much you need or limiting access online through password protection once you get to this final step it is very likely that you will already have modified your use in a way that ensures it is appropriately narrow When you look at this step Check that you have passed the other steps At each of these steps if necessary you should have narrowed or modified your use so that prejudice to the copyright holder is limited you are not interfering with the copyright holder s economic interest your use is non commercial and so on Check that you have an identifiable
2. The use does not conflict with normal exploitation As mentioned in an earlier scenario in the case of orphan work the material is not usually being exploited by the copyright holder at all so there will be no conflict with the council s proposed use The situation is more uncertain where the copyright holder is known In certain circumstances reproducing images in a catalogue would not interfere with the way copyright holders usually exploit their works If the local council only uses thumbnail reproductions we do not believe this use would conflict with the way that a copyright holder normally exploits their works However Viscopy offers licences for high resolution electronic copies and we understand that it considers any electronic reproduction of images as conflicting with this licence 32 An archives wants to feature unpublished documents non government sources from its collection on the educational section of its website The document authors while identified by the documents are otherwise unknown and untraceable Can the archives place digital copies online Yes The flexible dealing provision can be relied on in this case The use does not conflict with normal exploitation In this scenario it seems unlikely that the material is being exploited at all so this step should pose no hurdle The use will not unreasonably prejudice the copyright holder Even though the copyright holder cannot be located the archives c
3. A User s Guide to the Flexible Dealing Provision for Libraries Educational Institutions and Cultural Institutions Section 200AB of the Copyright Act 1968 Cth Published by the Australian Libraries Copyright Committee and the Australian Digital Alliance with the assistance of the National Library of Australia 2008 Text by Laura Simes This work is licensed under a Creative Commons Attribution Noncommercial Share Alike 2 5 Australia To view a copy of this licence visit creativecommons org licenses by nc sa 2 5 au or send a letter to Creative Commons Australia c Law Faculty Queensland University of Technology GPO Box 2434 Brisbane Qld 4001 Australia Australian Digital Alliance The ADA is a non profit coalition of public and private sector interests formed to promote balanced copyright law and provide an effective voice for a public interest perspective in the copyright debate ADA members include universities schools galleries museums ICT companies and other research organisations libraries and individuals For further information on our objectives and the work we do visit www digital org au PO Box E202 Kingston ACT 2604 Australia rt 02 6262 1273 F 02 6273 2545 ABN 91 256 931 758 Australian Libraries Copyright Committee The ALCC is the main consultative body and policy forum for the discussion of copyright issues affecting Australian libraries and archives It is a cross sectoral committe
4. Archives and Collecting Institutions An archives is able to rely on the Crown copying provision section 183 What scope is there for using the flexible dealing provision There is still wide scope for use of section 200AB These types of bodies will be able to use the flexible dealing provision when they are not copying for the service of the Commonwealth or a State There is no other exception The flexible dealing provision is not available when other exceptions can be used This includes the Crown copying statutory licence under section 183 Bodies that are copying for the service of the Commonwealth or a State can rely on section 183 for any copies they make This kind of copying is usually administered by the Copyright Agency Limited with payment made to the agency which then distributes it to the copyright holders However if the material is not to be used for the service of the Commonwealth or a State the archives can work through the steps and decide in each case whether the use can occur under the flexible dealing provision There is no hard and fast definition of section 183 and what it covers Institutions relying on section 183 that have an agreement with the Copyright Agency Limited could check what kind of copying is covered under the agreement Often section 183 will cover things such as copying material to compile reports or use of material for certain types of training but will not cover activitie
5. 4 This subsection covers a use that meets all the following conditions a the use is made by i a person with a disability that causes difficulty in reading viewing or hearing the work or other subject matter in a particular form or ii someone else b the use is 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 the difficulty c the use is not made partly for the purpose of obtaining a commercial advantage or profit This section does not apply if under another provision the use does not or might not infringe copyright 6 Subsection 1 does not apply if because of another provision of this Act a the use is not an infringement of copyright or b the use would not be an infringement of copyright assuming the conditions or requirements of that other provision were met Example 1 Paragraph a Without using an appliance adapted for producing multiple copies or an appliance that can produce copies by reprographic reproduction a school teacher reproduces a literary work in the course of educational instruction Under subsection 200 1 the reproduction is not an infringement of copyright in the work so this section does not apply Example 2 Paragraph b A body administering an institution assisting persons with a print disability makes a Braille version of a published literary work Under subsection 135ZP 2 maki
6. TRIPS The three step test is the threshold that domestic governments who are signatories to TRIPS need to apply when introducing exceptions to copyright to ensure compliance with international law Although there are a few steps to satisfy before making use of this provision it is important to remember that the purpose of the provision is to make it possible for institutions to use copyright material for a range of socially beneficial purposes and it is to operate in a flexible way Other exceptions under the Copyright Act only deal with a narrow range of specific situations and uses therefore preventing the use of the copyright material even though it would not have a detrimental effect on the copyright holder and would be beneficial to society These kinds of uses are possible under the flexible dealing provision Some common areas where section 200AB will be able to help libraries archives galleries and educational institutions are format shifting use of orphan works works whose copyright holders cannot be identified or located digitisation adapting works to assist with educational instruction to assist in the operation of a library or archives or to produce a more accessible copy of the work 3 Steps to Take When Deciding to Use the Flexible Dealing Provision Below is a flowchart summarising the steps to take when deciding to use section 200AB An explanation of each step follows You might find th
7. Yes The library can use the flexible dealing provision for this purpose There is no other exception Copyright holders have the right to control adaptations of their work so to make these translations the library needs an exception or permission from the copyright holder There are no exceptions that apply so the flexible dealing provision is open to them For the purpose of maintaining or operating the library This step is worded broadly to include any use for the purpose of operating the library The Explanatory Memorandum for this step states that this encompasses providing services to users The library s intended use in this case is clearly a service offered to users The use is non commercial The library has no problems at this step An example of a use that would not comply with this step would be if the library decided to commercially produce these translated stories The use does not conflict with normal exploitation The library would only have problems satisfying this step if the copyright holders offered translations in the local languages for sale then the library would be denying copyright holders their profits 19 the copyright holders commonly receive income through licences for this type of adaptation translation If in doubt about whether the copyright holder commonly offers a licence the library could contact the copyright holder or publisher for further information The use will not unreasonably p
8. and the section 28 exception does not allow copies to be made of performances within a class The use does not conflict with normal exploitation This use of a small extract of music in a podcast is not covered by any common licence and would not be available for purchase so there would be no conflict with normal exploitation of the material The use will not unreasonably prejudice the copyright holder In this scenario there does not appear to be any unreasonable prejudice since only a small extract is being reproduced and the podcast will only be available to students For more examples of educational uses see the Copyright Advisory Group s information sheets at the Smartcopying website http smartcopying edu au scw go pid 542 http smartcopying edu au scw go pid 533 36 Copying for People with a Disability A teacher wishes to caption a television episode that will be shown in class to assist a student with a hearing impairment Yes This use is possible under the flexible dealing provision There is no other exception No exception would allow this use The Part VB licence for educational institutions allows for some types of accessible copies but this does not include captioning In order to assist a person with a disability in reading viewing or hearing the work or for the purpose of educational instruction In this scenario the use satisfies both of these purpose tests If the person making the captions wa
9. a different view on this issue The use will not unreasonably prejudice the copyright holder In this scenario the gallery is taking steps to limit prejudice By using low resolution images and streamed or compressed audio on the website it is limiting the chances of the material being copied for illegal purposes as their quality would make them useless for most infringing activities The use is a special case lt is socially beneficial for the gallery to be able to promote items in its collection to the public By taking the limiting measures discussed in the other steps the gallery is making sure the use is appropriately limited in scope 30 An art gallery is planning an exhibition and wants to include a copy of an unpublished orphan work in a pamphlet to promote it Yes Provided the gallery takes appropriate precautions this use comes under the flexible dealing provision There is no other exception If dealing with an unpublished orphan work the gallery could check that the special exception allowing publication of unidentified materials does not apply If the orphan work is less than 50 years old this exception could not be used so the flexible dealing provision would be available The use is non commercial The gallery may have problems if the intention is to run a profit making exhibition It is acceptable to charge a cost recovery fee but if the gallery is making a profit from the exhibition it is likely that this st
10. includes the full ambit of usual library and archives activity It includes usual services but can also include activities such as a new service offered by the library noting of course that you still have to pass the other steps The use can also be by or on behalf of the library or archives so the institution can have another person or organisation act as agent for them For example if a library wished to shift material from VHS to DVD format relying on the flexible dealing provision but did not have the technical capacity to do so the library could engage another organisation to do the format shifting on its behalf Educational Institutions If you are an educational institution you should be using the material for the purpose of educational instruction The Explanatory Memorandum for this part of the provision states that this includes classroom and remote teaching 5 Explanatory Memorandum Copyright Amendment Bill 2006 Cth 110 10 The term educational instruction is not used restrictively and can include a range of activities such as preparing to teach compiling resources for students assessing and examining anything else that is for the purpose of teaching As with libraries and archives the use can be by or on behalf of the educational institution so the institution can get another person or organisation to act as agent for it Use by or for a Person with a Disability The flexib
11. section 200AB is intended to be a flexible exception that allows use of copyright material for certain socially useful purposes The Attorney General s Department also states in its fact sheet that this provision should allow use of copyright material for special purposes that benefit the broader Australian community This flexible dealing provision will be particularly helpful to institutions in cases where their proposed use of copyright material falls outside other specific exceptions such as fair dealing or library and archives preservation provisions Very briefly the requirements for using the flexible dealing provision are no other exceptions apply the use is for a certain purpose more information on this is provided later the use is non commercial the use will not prejudice the copyright holder the use will not compete with or take profit from the copyright holder the use is a special case 2 Attorney General s Department Copyright Fair Use and Other Copyright Exceptions Canberra Attorney General s Department 2005 www ag gov au www agd agd nsf Page Publications_Copyright ReviewofFairUseExeption May2005 3 Explanatory Memorandum Copyright Amendment Bill 2006 Cth 109 The final three requirements are known as the three step test This test has been directly imported from international treaties such as the Agreement on Trade related Aspects of Intellectual Property Rights
12. 200AB steps There is no other exception A library can make material available online for researchers at its premises if it is material that was copied under sections 51A and 110B preservation provisions These provisions are probably not helpful in this case as they only allow preservation copies to be made of manuscripts and first recordings In the case of other materials they must first be damaged deteriorated lost or stolen before the library can make preservation copies For the purpose of maintaining or operating the library This is a university library However the proposed action relates to library activities rather than educational activities so it is the library purpose that needs to be satisfied The purpose making material more readily available to researchers and library users easily satisfies this step 24 The use does not conflict with normal exploitation In this scenario most of the materials are orphan works that is the copyright holder is unknown or it is difficult or impossible to locate them In many cases involving orphan works this step will be easily satisfied Often the work has not been commercially exploited by the copyright holder and will not be in the future as there was never any commercial intention behind the work for example former USSR government pamphlets or other ephemera It would be prudent for the library to look at the material in detail to check there are no individual item
13. Copyright Act 1968 200AB Use of works and other subject matter for certain purposes 1 The copyright in a work or other subject matter is not infringed by a use of the work or other subject matter if all the following conditions exist a the circumstances of the use including those described in paragraphs b c and d amount to a special case b the use is covered by subsection 2 3 or 4 c the use does not conflict with a normal exploitation of the work or other subject matter d the use does not unreasonably prejudice the legitimate interests of the owner of the copyright Use by body administering library or archives 2 This subsection covers a use that a is made by or on behalf of the body administering a library or archives and b is made for the purpose of maintaining or operating the library or archives including operating the library or archives to provide services of a kind usually provided by a library or archives and c is not made partly for the purpose of the body obtaining a commercial advantage or profit Use by body administering educational institution 3 This subsection covers a use that a is made by or on behalf of a body administering an educational institution and b is made for the purpose of giving educational instruction and c is not made partly for the purpose of the body obtaining a commercial advantage or profit 43 Use by or for person with a disability
14. It is also about making sure that you use the copyright material in a fair and reasonable way that will not unnecessarily interfere with the copyright holder s rights You can tackle this step by asking these kinds of questions Am using the material in an appropriate way for example am making sure only make as many copies as necessary Am respecting the moral rights of the creator for example have properly attributed them if possible 8 Explanatory Memorandum Copyright Amendment Bill 2006 Cth 110 14 Have made any changes to the work If so are they necessary and is it obvious on the copies that there have been changes Am thinking about other issues such as privacy whether the work is published or not and cultural sensitivities Will my use of the material expose it to possible misuse for example piracy or have placed appropriate controls on the use for example by restricting access Remember that the issue is whether you are unreasonably prejudicing the copyright holder In many cases your use of the material will prejudice the copyright holder to some extent This step is about making sure that you limit your use so that your prejudice is not unreasonable Examples of actions you might take to limit the use are attaching conditions to the use restricting who has access to the material for example password protection using compressed format or low resolution copies
15. an still take steps to minimise prejudice In this case this might include a notice or hyperlink advising readers that the copyright holder could not be located and setting out a policy for the prompt take down of material where the copyright holder comes forward and does not want the material available online This is a special case The proposed use is specific and identified as it involves digitisation of a small set of documents whose copyright holders cannot be located It appears to be an appropriate special case 33 Educational Institutions A teacher wishes to put together a DVD compilation of excerpts from films to show in a lecture Yes The flexible dealing provision can be relied on in this case There is no other exception Educational institutions should first check whether the use is covered under Part VA or Part VB statutory licences administered by Screenrights and the Copyright Agency Limited respectively In this scenario the teacher proposes to use material from a film that is not covered under either of the licences If the material was to be compiled from a television program rather than a film then the Part VA licence would cover the use For the purpose of educational instruction The proposed use certainly fits within this purpose The use is non commercial This use would not be considered commercial in any way The use does not conflict with normal exploitation It would not be possible to purcha
16. ber of other exceptions available to the library that would allow the copies to be made The library could possibly use this provision if the type of preservation did not fall under the other exceptions There is no other exception Sections 51A and 110B allow libraries and archives to copy works for preservation purposes If the material is already published the library must first check if it is available commercially for a reasonable price The material must be damaged or deteriorated before the library can use these sections 22 The library may want to make preservation copies to proactively preserve the material that is it does not want it to become damaged before it is preserved Once again there is another exception that could apply The key cultural institution provisions sections 51B 110BA and 112AA allow preservation copying before actual damage has occurred This provision automatically applies to state and national lipraries and archives Other organisations can apply to the Attorney General to be prescribed as a key cultural institution They would then be able to make preservation copies For further information on these provisions see the Australian Digital Alliance Australian Libraries Copyright Committee information sheet at www digital org au documents Key_cultural_institutions pdf However there may still be situations where the library wishes to make preservation copies and other provisions are not available In
17. blic will be able to access the works through computers onsite or via the internet Maybe Whether the library can do this will depend on the material In some cases the library will be able to use the flexible dealing provision but if the material is still commercially available it would not be possible The use does not conflict with normal exploitation This is quite an expansive scenario making it difficult to provide an answer that applies to all the material It is quite likely that some of the works the library intends to digitise are commercially available This may include availability in a digital 25 format If the library digitised and made this material available to the public this would very likely conflict with the way that the copyright holder normally obtains revenue from the work On the other hand the library collection probably includes rare and out of print material that would be very difficult for library users to access let alone purchase It will often be the case that the copyright holder is no longer commercially exploiting the material The library should check if the material is soon to be reprinted as this could cause a conflict between freely available material on the internet and the reprinted books available for sale Scenarios such as this are worded very broadly and potentially include a diverse range of materials and circumstances In order to deal with each of these steps sufficiently we recommend
18. breaking the scenario into smaller chunks It may even be advisable to for example check whether any individual items might soon be reprinted or otherwise made commercially available in a way that would conflict with the intended use A library in a law firm wishes to scan the headings and outlines of articles in a periodical to alert staff to new acquisitions Yes There is no problem with a library reproducing contents pages containing information such as headings page references and citations as this information would either not be protected by copyright or would most likely be an insubstantial amount Other material on contents pages such as outlines images or graphs will be works protected by copyright and this may be an area where the flexible dealing provision will be helpful For the purpose of maintaining or operating the library This proposed use is a common service provided by libraries The use does not conflict with normal exploitation It is unlikely that a copyright holder of the material in a contents page would consider it a normal part of their income stream to receive either direct payment or payment in the form of royalties from this material 26 Can the library make a replacement DVD cover if the first one was damaged Yes However the library can make this replacement copy under a different exception section 51A Section 51A allows the library to make a replacement copy of a published w
19. ction of documents or other materials provided they are of historical significance or public interest The body needs to be maintaining and preserving the documents and cannot be doing it for the purpose of making a profit The Act specifically states that museums and galleries could have collections that fall under this definition 11 Educational Institution An educational institution is defined in the Copyright Act and includes a wide range of bodies pre schools or kindergartens primary schools secondary schools universities technical and further education TAFE institutions other organisations offering education This includes bodies offering external study or correspondence and schools of nursing For further information see section 10 of the Copyright Act or seek legal advice The Use Is Non commercial The exact phrase used in section 200AB is that the use cannot be partly for the purpose of commercial advantage or profit In practice this means you cannot use the flexible dealing provision if the use is partly or wholly for the purpose of commercial advantage or profit The provision specifically states it is acceptable to charge a cost recovery fee You need to think about the reason for using this provision If you are using it to make a profit or to obtain a commercial advantage over competitors then you will probably run into difficulties You will not have problems if you are usin
20. e For example if a DVD that you format shifted from VHS may become commercially available you need to define your use so that once it is available commercially you discard the DVD copy made under section 200AB We do not share the view that section 200AB places an onus on you to re check periodically whether any of the factors might have changed We believe that you need only look at matters as they stand at the time you rely on section 200AB Once you have legitimately made the copy under section 200AB there will be no requirement for you to destroy it in the future However should you wish to make a new use of your section 200AB copy for example place it online then at that time you would need to check if section 200AB allows you to do this We take this view because unlike some other exceptions in the Copyright Act for example the private copying exceptions section 200AB does not contain any backward looking qualification to suggest that if circumstances change the copy becomes illegal We understand the Copyright Advisory Group also holds this view Technological Protection Measures Technological protection measures are digital locks placed on electronic material to prevent people from copying or even accessing it Examples of technological protection measures are DVD copy protection and access codes It is an offence to break circumvent these locks However there are some exceptions that allow peop
21. e flexible dealing provision to supply the material The use is non commercial The library has no problems with this step It could even charge users on a cost recovery basis if necessary but would not be able to charge full commercial rates in an attempt to make a profit from these materials The use does not conflict with normal exploitation To ensure this step is satisfied the librarian can check if the article on its own is available for sale If it is readily available to purchase the librarian may then be coming into conflict with how the copyright holder makes a profit if they provide the article free 20 Some collecting societies take the view that neither section 200AB nor the fair dealing defences apply in these circumstances We take the view that in the majority of cases at the moment there will be no conflict with normal exploitation of copyright material The use will not unreasonably prejudice the copyright holder The librarian can take simple steps and limiting measures to ensure the copyright holder will not be prejudiced They could provide full citation details or provide electronic material in a format that minimises reader misuse of the material For example it could be provided via a web link that will expire after a short period The use is a special case In this scenario the librarian has looked at the other steps and has decided each one has been satisfied The way the material will be used has been appro
22. e with representatives from national and state libraries and archives as well as peak library and archive bodies For further information on our objectives and the work we do visit www digital org au alcc PO Box E202 Kingston ACT 2604 Australia T 02 6262 1273 F 02 6273 2545 aBn 51 611 768 743 Acknowledgments 4 2 Purpose and Nature of This Guide Background to Section 200AB Overview of Copyright Law Copyright Amendment Act 2006 The Flexible Dealing Provision Steps to Take When Deciding to Use the Flexible Dealing Provision There Are No Other Exceptions Available to You The Purpose of the Use The Use Is Non commercial The Use Will Not Conflict with Normal Exploitation The Use Will Not Unreasonably Prejudice the Copyright Holder The Use Is a Special Case Scenarios Libraries Archives and Collecting Institutions Educational Institutions Copying for People with a Disability Our Patented Flexible Dealing Cheat Sheet Further References Section 200AB of the Copyright Act 1968 RR WOO CN 10 12 13 14 15 17 18 29 34 37 39 41 43 Acknowledgments Thanks to members of the Australian Libraries Copyright Committee Australian Digital Alliance Copyright in Cultural Institutions and Australian Library and Information Association Intellectual Property Advisory Committee staff of the National Library of Australia Delia Browne from the Copyright Advisory Group of the Ministerial C
23. ep would not be satisfied The use does not conflict with normal exploitation The questions to think about are whether the gallery s use will enter into competition with the copyright holder s use or deprive them of significant commercial gains Since this is an orphan work it appears that the copyright holder is not exploiting the work at all In most cases of orphan work material such as old letters or papers there will be little or no commercial value The gallery will be able to conclude that the copyright holder is not commercially exploiting the material and will not seek to do so in the future The use will not unreasonably prejudice the copyright holder This is an important step when dealing with orphan works It will often be easy to satisfy the previous step as an orphan work will rarely be commercially exploited now or in the future At this step however even though the copyright holder is unknown it is still important for the gallery to consider how they would want the material to be used If the unpublished orphan work contains material of a personal nature or sensitive Indigenous material the gallery should be wary about publishing this content Even though the gallery does not know who the copyright holder is it should respect their moral rights Although attribution may not be possible the gallery could place a notice about the work nearby stating that it has tried to locate the copyright holder and provide co
24. ery was charging users to access the recordings and images on its site The use does not conflict with normal exploitation In the case of orphan works for example where the gallery does not know or cannot find the copyright holder it will often be the case that the material is not being exploited by the copyright holder Therefore there will not be problems with conflict with the copyright holder s usual revenue stream If the copyright holder is known Normal exploitation is a difficult term to pin down It is not going to cover absolutely every use that a copyright holder or their representative for example a collecting society might decide to draw revenue from That is this step is about ensuring your use does not conflict with common ways that copyright holders obtain revenue for their work Licence fees for thumbnail images are currently not a normal way in which copyright holders obtain revenue so the gallery would not be depriving the copyright holders of significant commercial gains The question to ask is whether the use will affect ways that copyright holders normally extract economic value in the market The Viscopy website offers licences for the purchase of high resolution copies of images and for the purchase of reproduction rights of images We do not believe these licences conflict with making a low resolution copy for display on a gallery s website Other organisations such as the Australian Copyright Council hold
25. ew criminal provisions provisions relating to digital locks called technological protection measures and a number of exceptions for users of copyright materials Prior to this the Attorney General s Department released an issues paper on copyright exceptions Many user groups including the Australian Digital Alliance and the Australian Libraries Copyright Committee made submissions to the government in support of a flexible dealing provision similar to the fair use exception in the United States However the US exception is different from Australia s in that it does not apply to specific purposes specific types of uses and certain types of bodies or institutions The US exception is a general provision available to any individual or body and involves balancing factors such as the way the material is used and the effect the use will have on the market for the copyright material As it is a general provision new or innovative uses including new uses as technology changes are possible under this doctrine provided the circumstances of the use are fair The Flexible Dealing Provision The Copyright Amendment Act 2006 does not include a US style fair use provision but does include section 200AB This provision applies to libraries archives and educational institutions as well as people and institutions assisting those with a disability and is intended to operate like fair use As stated in the Explanatory Memorandum
26. for preservation purposes However in this scenario the reason behind wanting to format shift is technological obsolescence so there is no other exception the library could use For the purpose of maintaining or operating the library It is quite common for libraries to offer a room where users can view films or documentaries held in its collection The use is non commercial In this scenario the library s use of the copyright material is non commercial as the service would be offered to users free Ifthe library decided to charge per view of the documentary and this fee exceeded the cost of providing the service then this step would not be satisfied The use does not conflict with normal exploitation At this step the library would look at the availability of the documentary in DVD format If the library contacted the distributor and discovered that it currently sells the same documentary in DVD format then by making its own DVD copy the library would be coming into conflict with how the copyright holder normally makes money from their work The library may also be aware that the distributor will soon be issuing the documentary on DVD This might raise problems but would not necessarily prevent the library from making its own copy For example if the reason for format shifting the documentary was because a user had requested to view it it would be irrelevant that the DVD would soon be available That is if there is a need for the docume
27. g the material for a non commercial purpose Commercial entities such as profit making colleges may have more difficulty dealing with this requirement We do not think that just being a commercial entity excludes the use of section 200AB however these bodies may need to seek further advice on the extent to which reliance on section 200AB is possible If you are not sure whether you are using the material for profit or commercial advantage it may be useful to ask Is the use linked to the purpose for example offering a library service or is it more closely linked to an activity in which a commercial entity might be engaged Are you selling something or using the material in connection with the sale of a good or service for a price that is greater than cost recovery Whether an activity is partly for the purpose of commercial advantage or profit is an issue on which different views have been expressed and one on which your institution may have taken or may need to take a position 12 The Use Will Not Conflict with Normal Exploitation This step is about assessing how your use affects the way copyright holders usually make money from their copyright material The 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
28. he end of this publication For example the Copyright Advisory Group has produced a guide and the Australian Copyright Council has published a fact sheet and a more detailed guide There are differing views on a number of issues relating to section 200AB and these are reflected in the different guides Your organisation s management or lawyers can advise you particularly in situations where there are differing views on a matter 1 Explanatory Memorandum Copyright Amendment Bill 2006 Cth 108 2 Background to Section 200AB Overview of Copyright Law Copyright law in Australia gives copyright holders exclusive rights to do certain things with their material Depending on the type of material the copyright holder generally has the right to control publication Performance communication to the public adaptation of the material for example a translation or adaptation from a novel to a play reproduction If a person or institution wishes to use material under copyright in a way that can be controlled by the copyright holder for example making a copy they will generally need to seek the permission of the copyright holder Material is protected by copyright for up to 70 years after the death of the creator Works that have been unpublished can remain in copyright in perpetuity These rights provide copyright holders with an incentive to produce works as they are given a time period during which they ca
29. ilable to you fair dealing provisions library provisions statutory licences for example Part VA and Part VB licences or the Crown copying provision under section 183 You are using the Libraries and archives material for a set n order to maintain or operate the library or archives purpose Includes providing a service of a kind usually provided by a library or archives Encompasses both the internal administration of the library or archives and providing services to users A broad purpose test that includes the full ambit of usual library and archives activity It includes usual services but can also include activities such as a new service offered by the library Educational institutions For educational instruction A broadly worded purpose that can include the full ambit of activities for educational instruction Includes things such as using material for teaching preparing to teach or compiling resources for students education Assisting a person with a disability that results in difficulty reading viewing or hearing the material Any person or institution can make use of copyright material to allow the person to obtain the material in a format that reduces the difficulty caused by the disability for example changing the format to a read aloud book or adding subtitles 39 The use is non commercial The use does not conflict with normal exploitation The use will
30. interfering with the copyright holder s normal method of exploiting the material It is likely that in most cases audiovisual material would only be available for purchase in full if available at all If the whole film is available for purchase but the user only wants a small portion of the audiovisual material then it is likely that providing this small portion would not conflict with normal exploitation The use will not unreasonably prejudice the copyright holder The library could address moral rights issues by including proper attribution in the copy Another measure for making sure prejudice to the copyright holder is kept to a minimum is only copying the required quantity extract for the user If providing material electronically the library might decide to stream the file rather than offer it as a download to minimise misuse by others The use is a special case At this point the library has gone through all the earlier steps decided it is satisfied and made modifications to what amount of material is provided and how The use has been limited appropriately or as the Explanatory Memorandum says in a qualitative and quantitative sense As mentioned on page 8 section 200AB cannot be used if it involves breaking a digital lock This will prevent for example use of copy protected DVDs A public library wishes to make preservation copies of items in its collection Probably not under this provision There are a num
31. ion The Part VA licence covers use of broadcasts so if the podcast was taken from an ABC broadcast for example the Part VA licence could be relied on 35 The use will not unreasonably prejudice the copyright holder The lecturer will be making the podcast available in a restricted environment and one would assume with appropriate attribution thereby minimising any prejudice to the copyright holder The use does not conflict with normal exploitation If the podcast has been made freely available on a website it would not appear the copyright holder intends to commercially exploit it There should therefore be no commercial conflict in reproducing the podcast for students However it would be prudent for the lecturer to check if there are restrictions under the terms and conditions of the originating website Another issue for the lecturer to consider is that although the podcast is free the copyright holder may obtain commercial benefit through advertisements on the site In this case copying the podcast to an online environment could interfere with revenue obtained through visits to the website A music teacher wishes to make their lecture available to students as a podcast however part of the lecture involves the teacher playing an excerpt of music to the class Can the teacher do this Yes The flexible dealing provision can be used in this case There is no other exception The statutory licences do not cover this scenario
32. ion to resolve There Are No Other Exceptions Available to You The Explanatory Memorandum for this part of the flexible dealing provision states This condition ensures other specific exceptions and statutory licences continue to apply and are not overtaken by s 200AB Eg where an act is permitted under a statutory licence a user cannot access s 200AB as a way of avoiding the obligation to pay remuneration by failing to meet a condition of the statutory licence For this step you need to check if there is another exception you can rely on for your proposed use Can you rely on a fair dealing exception for example fair dealing for the purpose of research or study reporting the news or parody and satire Libraries or archives can you use one of the specific exceptions for example a preservation provision such as section 51A which allows libraries to make copies of works for preservation purposes Or can you rely on the interlibrary loans and document delivery provisions Educational institutions does the intended use fall under one of the statutory licences that is Part VA or Part VB licences These licences cover many uses Educational institutions should also check whether the use is permitted under an exception such as section 28 which allows performance and communication of works in the course of educational instruction 4 Explanatory Memorandum Copyright Amendment Bill 2006 Cth 112 Some institution
33. is section useful to refer to when making your own decisions and as examples are discussed in Scenarios on page 17 There are no other exceptions available to you You are using the material for a set purpose The use is non commercial The use does not conflict with normal exploitation The use will not unreasonably prejudice the copyright holder The use is a special case Use allowed under the flexible dealing provision What Material Is Covered All types of copyright material are included This includes artistic works such as paintings photographs diagrams and architectural plans musical works such as compositions literary works such as novels poems and newspaper articles and dramatic works such as plays It also includes other types of copyright materials such as films recordings and broadcasts These materials can be in any format including hardcopy and digital What Do We Mean by Use The use of the material can be any act that would otherwise constitute an infringement Most commonly this would be copying the material but it also includes uses such as making an adaptation performing the material or using a substantial part of the work to create something else The Australian Copyright Council holds the view that when assessing whether you can use material under the flexible dealing provision you need to define the use so that it takes into account a possible change of circumstances in the futur
34. ise their holdings to users looking for particular items Maybe As noted in an earlier scenario in some cases the book covers will not be covered by copyright In other cases the library might be able to rely on the flexible dealing provision The library should also check whether there are terms and conditions attached to the image supplied as these may expressly prevent the library from using the images in this way and would result in a breach of contract The use does not conflict with normal exploitation There are differing views on this issue Some suppliers provide thumbnail book cover images at a cost to customers However it is unclear whether these customers are paying for a licence to use the images or just paying for the convenience of the digital thumbnails It may be that as many of these companies are US based they are not providing a licence for libraries because use of the thumbnails seems to come under US fair use From our research it does not seem as though licensing of book cover images is a normal way that a copyright holder obtains money The use will not unreasonably prejudice the copyright holder As always the library should think about limiting the use of the images by only including low resolution images thumbnails on its catalogue By reproducing the images this way they will be of little value or use to others thereby minimising the chances that they will be used for infringing purposes 28
35. l case category 6 Further References Australian Digital Alliance www digital org au Contains recent news and contributions to current copyright issues such as government reviews Also includes the ADA Intellectual Property Wrap up which summarises recent copyright cases new legislation and other issues Australian Libraries Copyright Committee www digital org au alcc Contains recent news and the Australian Libraries Copyright Committee s contributions to current copyright issues such as government reviews Resources page includes guides to different aspects of copyright with a libraries and archives focus www digital org au alcc resources Copyright Advisory Group s Smartcopying website Information sheets http smartcopying edu au The information sheets are aimed at schools however there are also a number of general information sheets including one that discusses the flexible dealing provision http smartcopying edu au scw go pid 533 and http smartcopying edu au scw go pid 542 Attorney General s Department General copyright information www ag gov au www agd agd nsf Page Copyright Fact sheets on the 2006 copyright amendments www ag gov au www agd agd nsf Page Copyright_IssuesandReviews_CopyrightAmendmentAct2006 Factsheets Australian Copyright Council Publications www copyright org au publications Information sheets www copyright org au publications infosheets htm 41 7 Section 200AB of the
36. le and institutions to break the locks in certain cases For example libraries can break a digital lock to make preservation copies of the material However the Copyright Act does not allow digital locks to be broken or circumvented in order to use section 200AB This means you cannot rely on this flexible dealing provision section 200AB if your intended use requires you to break the digital lock For example if you wish to make a copy of a DVD that contains copy protection it will be an offence to break the lock However the Attorney General has the power under the Copyright Act to authorise the breaking of digital locks in certain circumstances If you have identified an act you think would be allowed under section 200AB but you need to break a lock you can apply to the Attorney General s Department for this use to be prescribed and so made legal Declarations and Record Keeping Some other exceptions under the Copyright Act include record keeping requirements for example the Part VB statutory licence and the document delivery interlibrary loans provisions Some also require declarations to be made before copying or another use can occur There are no record keeping requirements under section 200AB However your institution may have its own procedures regarding record keeping and may decide as a matter of good practice to keep a record of when and why section 200AB has been relied on This is a matter for you and your institut
37. le dealing provision can be used by or to assist a person with a disability that results in difficulty in reading viewing or hearing the material in its current format A person with a disability can take advantage of this provision along with any other person or institution including educational institutions libraries and cultural institutions Those using this provision just need to make sure that the reason for their use of the copyright work adapting making large text copies adding subtitles etc is to provide a person with a disability with material in a new form or with a feature that reduces the difficulty caused by the disability Note however that educational institutions have other exceptions for assisting people with a disability that may restrict the ability to rely on section 200AB Definitions Library There is no definition of library in the Copyright Act Where terms are not defined the practice is to look to the ordinary meaning of the word including dictionary definitions The term library would no doubt include a collection of books journals and other materials including audiovisual and electronic materials that is maintained for research study and reference by users Archives Archives is defined in the Copyright Act It specifically refers to the National Archives of Australia and state archives bodies in New South Wales Victoria and Tasmania The general definition includes any colle
38. n exploit the work for their own economic gain However it is recognised that copyright law must strike a balance between providing this incentive to create and providing users and creators of copyright material with reasonable access It is particularly important that copyright law is not so restrictive that it hinders people and institutions from using copyright material for socially beneficial purposes such as education and research For this reason the Copyright Act 1968 Cth contains a number of exceptions to copyright holders rights Where an exception applies the individual or institution does not need to obtain the permission of the copyright holder before they use the material and in many cases will not need to pay a fee or royalty Most exceptions under Australian copyright law are quite specific in nature That is they only apply to certain types of uses or purposes For example the fair dealing exceptions apply only to uses such as criticism and review reporting the news research and study and parody and satire There are also exceptions that apply to certain organisations for example libraries and only to certain uses within libraries such as copying for preservation purposes For further information on copyright law in Australia see Further References on page 41 Copyright Amendment Act 2006 The Copyright Amendment Act 2006 came into effect in December 2006 and among other things introduced n
39. ng such a version does not infringe copyright in the work if certain conditions relating to remuneration etc are met so this section does not apply Cost recovery not commercial advantage or profit GA The use does not fail to meet the condition in paragraph 2 c 3 c or 4 c merely because of the charging of a fee that a is connected with the use and b does not exceed the costs of the use to the charger of the fee Definitions 7 In this section conflict with a normal exploitation has the same meaning as in Article 13 of the TRIPS Agreement special case has the same meaning as in Article 13 of the TRIPS Agreement unreasonably prejudice the legitimate interests has the same meaning as in Article 13 of the TRIPS Agreement use includes any act that would infringe copyright apart from this section 44
40. ng to exploit the material if the material is something that the copyright holder never had an intention of exploiting commercially and which they still do not wish to exploit commercially if there is no common licence for what you want to do A collecting society might inform you it does not have a standard licence for the use but it can put together a new or one off licence This is not a normal licence and so would not be part of the normal exploitation of the material particularly if your use is new or novel or one for which collecting societies have not normally offered a licence The Use Will Not Unreasonably Prejudice the Copyright Holder As stated in the Explanatory Memorandum the use must not unreasonably prejudice the legitimate interests of the holder of the copyright or a person licensed by the holder of the copyright This condition requires an assessment of the legitimate economic and non economic interests of the copyright holder The previous step involved thinking about how the copyright holder usually makes money from their copyright material This step involves thinking about the way you intend to use the copyright material and how your use might affect the economic and non economic interests of the copyright holder more generally This is not just about whether your use will interfere with the copyright holder s profits it is also about whether it will interfere with their other interests
41. not unreasonably prejudice the copyright holder The useisa special case 40 The use is not for commercial advantage or profit that is you should not be using the material with the intention of making a profit It includes entering into competition in a way that provides a commercial advantage over competitors Charges for cost recovery purposes are acceptable The use does not compete with the way a copyright holder normally exploits or makes a profit from their work Check the use will not interfere with a common stream of revenue for the copyright holder for example revenue from sales or licences In some cases it might be clear that in the future the copyright holder will be commercially exploiting your type of use for example where a company is in the process of re issuing all VHS products as DVDs Make sure the material is used in a way that respects the moral rights of the creator considers other issues such as Indigenous sensitivities and privacy take steps to minimise exposing the material to misuse and copyright infringement Is your use narrow specific and identified Have you passed the other steps Have you gone through the previous steps and made adjustments as necessary You have limited the quantity of material used how you will use it who can access it etc Ifall other steps have been satisfied it is very likely the use will fall within the specia
42. ntact details so a claimed copyright holder can approach the gallery 11 Section 34 Copyright Act 1968 Cth 31 This is a special case This use fits within the category of special case The material is an orphan work and the gallery cannot locate the current copyright holder to obtain permission to use it The use is quite limited it will be reproduced in a pamphlet so will be a fairly low quality reproduction The gallery does not intend to make any money out of the use and it does not appear that the copyright holder wherever they are intends or desires to commercially exploit the work A municipal council has a small local history museum The museum has its own catalogue that has only been used internally Some of the records include a link to a scanned version of a photograph or an image of an object Most of the photographs date back to the nineteenth century but some are quite recent The museum wishes to import this catalogue into the library s service catalogue so it is available for people to access and search online Yes This will be possible for some and perhaps all of the images The use will not unreasonably prejudice the copyright holder In this scenario the council will be including the images alongside the records so attribution of the copyright holder where known will not be a problem The council can limit the possibility of others misusing copyright images by only providing them as thumbnails
43. ntary to be available in DVD format within a certain timeframe the library could format shift it themself 18 The use will not unreasonably prejudice the copyright holder At this step the library can think about the way it intends to use the documentary and how to make sure that the use respects the copyright holder For example the library should make sure the format shifted copy replicates attribution details on the original for example the creator date of publication and distributor The library should also check it is using the material only to the extent it needs to For example if the library holds only one copy in VHS format it is probably reasonable to make only one copy rather than multiple copies The use is a special case Here the library thinks about the factors discussed in the previous steps to decide if the use seems special in the circumstances In its current format the documentary is useless due to technological obsolescence and there is no other provision to allow the library to format shift The library has ensured the use is limited by only format shifting one equivalent copy A public library has a special collection that is intended to strengthen Indigenous people s English and information literacies The library wants to translate popular children s stories into local languages and produce in house bilingual versions of these stories Items in this collection are free and available to all but not for loan
44. ork if it has been damaged deteriorated lost or stolen after first checking whether the work is commercially available In this case the published work is the DVD cover itself Since individual DVD covers are not available for purchase the library could rely on section 51A to make a replacement copy Can a library scan the front cover of a book to include in a library newsletter The purpose is to let users know about new books available to borrow Yes In some cases the cover itself will not even be protected by copyright for example if only the author s name and title are included or where the cover is an out of copyright artwork However if the cover contains original artwork it will attract copyright protection In this case the library could rely on a fair dealing exception for the purpose of reporting the news and will probably not need to rely on section 200AB No other exception applies Section 42 1 provides a fair dealing exception that allows use of a work for the purpose of reporting the news As the book cover is being used as part of an article in a newsletter provided proper acknowledgment is given and the use is a fair dealing there is no need to seek reliance on section 200AB 27 A library receives electronic images of book covers from its suppliers during the centralised purchasing process to aid in online selection Can public libraries use these images in their own online catalogues to public
45. ouncil on Employment Education Training and Youth Affairs and Sarah Waladan from Minter Ellison for thoughts and comments as this guide was compiled Particular thanks go to Moyra McAllister Paul Dalgleish Bronwyn Dowdall lan McDonald Kimberlee Weatherall and Robyn Wright for detailed feedback of draft copies of the guide Thanks also to the attendees of the 2007 Australian Libraries Copyright Committee copyright sessions whose questions and examples are the basis of many of the scenarios discussed in this guide 1 Purpose and Nature of This Guide Section 200AB was introduced into Australian law through the Copyright Amendment Act 2006 Cth with the aim of providing a flexible exception to enable copyright material to be used for certain socially beneficial purposes while remaining consistent with Australia s obligations under international copyright treaties Because section 200AB is an open ended exception that uses terms drawn from international copyright treaties some institutions may not be sure exactly how much use it allows This publication therefore provides guidance and suggestions for institutions considering using section 200AB The guide does not and cannot provide legal advice or advice tailored to your particular situation If you need to know how the law applies to a certain situation a copyright lawyer can advise you A number of other guides to section 200AB exist some of which are referred to at t
46. priately moderated and limited The librarian may also need to check the terms and conditions of the subscription service as these may prevent certain uses A user makes a request to a library for a copy of audio or audiovisual material for the purpose of research and study Can the librarian make a copy for them Yes After conducting some checks and limiting the use appropriately in certain cases the librarian can copy the material There is no other exception The library document delivery provisions sections 49 and 50 allow libraries to provide certain materials for research and study but this does not include audiovisual material There are no other exceptions on which the library could rely For the purpose of maintaining or operating the library A common function of libraries is to supply users with access to their resources so this use certainly falls within this step The use is non commercial The library will satisfy this step by only charging cost recovery fees or not charging at all The use does not conflict with normal exploitation The library should check whether the material requested is available for purchase including as a download 10 Australian Copyright Council Special Case Exception Education Libraries Collections Sydney Australian Copyright Council 2007 at 30 21 If the material is rare difficult to obtain or no longer sold by the distributor then providing the material would not be
47. rally become more defined and discrete For example if you propose to provide access to your library s collection online a very broad use the step where you check the use does not conflict with normal exploitation will exclude digitisation of publications such as Harry Potter but will most likely allow orphan work ephemera When you get to the step where you limit prejudice to the copyright holder you may decide that some unpublished and more sensitive materials will be digitised but only made available to people who request access for example researchers This guide does not constitute legal advice If you need to know how the law applies to a particular situation you may need to seek formal legal advice 17 Libraries A public library has a room where users can borrow programs documentaries and films from the library s collection and watch them It has a documentary on VHS but no longer has video players on the premises It wishes to shift this from VHS to DVD format Yes The library can use the flexible dealing provision for this use subject to some issues outlined below We have also discussed some variations in this use and how this might affect the availability of the flexible dealing provision There is no other exception If the reason for wanting to format shift the VHS documentary is because it is damaged or deteriorating then the library could use section 110 2 b which allows a replacement copy to be made
48. rcial exploitation that is re issuing material in DVD format The teacher may also want to check whether the film will be released in DVD format in the near future However if the film will not be available in DVD format in the appropriate timeframe the teacher could still format shift it for the class The use will not unreasonably prejudice the copyright holder As the teacher will only be showing the film in class there is little possibility of prejudice to the copyright holder For example the teacher is not exposing the film to a situation where it could be copied or used for infringing purposes We assume the teacher will also provide appropriate details about the film to the class The use is a special case This use of copyright material is quite narrow and for a set purpose We believe all the other steps have been satisfied and appropriately limited for example the teacher is not lending out the DVD which could open the work up to infringement This scenario appears to be a special case under this provision A lecturer finds a podcast that is freely available on the internet and relevant to the class They wish to copy the podcast and make it available to students in an online learning environment for example Blackboard or WebCT Yes The flexible dealing provision is available in certain cases An alternative to relying on section 200AB would be to simply provide a web link to the podcast There is no other except
49. reason for the use that is that you are not making copies or using the material speculatively or just in case Once again it is likely that you will have identified an appropriate need or reason for the use at the purpose test that is when checking the purpose is for maintaining or operating the library for educational instruction etc 9 Explanatory Memorandum Copyright Amendment Bill 2006 Cth 110 15 4 Scenarios This section provides a number of possible scenarios where the flexible dealing provision might be useful Many of these scenarios are real life situations provided by our members This is not an exhaustive list As this is a flexible dealing provision it would be impossible not to mention quite tedious to outline every possible use However looking at these worked examples will give you a good idea of issues to think about and questions to ask when deciding to use the provision You will find that both the Copyright Advisory Group and the Australian Copyright Council have more scenarios in their guides Some examples are worked through in detail while others just outline a few issues that the scenario raises You will see in these examples that the flexible dealing provision has a very broad application and that often you just need to moderate your use a little so that it fits within the provision When starting with a very broad possible use you will find that as you run it through each step it will natu
50. rejudice the copyright holder In this example the library has already proposed taking a number of measures that will minimise any prejudice to the copyright holder It will not be charging any money and is confining access to the materials to the library s premises The library could also make sure it includes proper attribution on the translated versions for example author artist or original publisher details The use is a special case Considering the earlier steps and the scenario this looks to be a special case it is a non commercial socially beneficial activity that would not be possible under other exceptions The library has also clearly taken steps to ensure the use of the material is appropriately limited A librarian receives a reference query from a user on a particular subject The librarian responding to the query would like to send the user an article that is available from a subscription service that the library pays for Maybe The librarian may also be able to rely on a different exception There is no other exception The librarian could provide the user with the article reference and recommend they request the article for research and study under the document delivery provisions sections 49 and 50 of the Copyright Act However these document delivery provisions can only be used to provide material for the user s research and study If the use falls outside sections 49 and 50 the librarian could arguably use th
51. s not a teacher but an organisation or a friend they would rely on this specific disability purpose The use does not conflict with normal exploitation To make sure the teacher s use will not be in conflict they should check whether it is possible to buy a captioned version of the program If none is available or it will not be available in time for the class the teacher can be confident this step is satisfied A person with a vision impairment asks their university to convert music written notation into Braille format Yes This use would be possible under the flexible dealing provision There is no other exception The Part VB licence allows educational institutions to make copies to assist people with a disability but this is not included In order to assist a person with a disability in reading viewing or hearing the work The scenario fits within this purpose The use is non commercial The person in this scenario is not prevented from going to a commercial organisation to obtain a copy in a more accessible format However the organisation can only charge a cost recovery fee for this service The use does not conflict with normal exploitation Before going ahead with this use the person should first check whether the music is available for purchase in Braille format 37 5 Our Patented Flexible Dealing Cheat Sheet There are no Consider whether other exceptions apply to the use other exceptions such as ava
52. s such as copying material from a collection for internal use or external research It is unlikely that galleries and museums in their day to day activities will rely on section 183 whereas the activities of a library within a government department are more likely to fall under section 183 Staff may need to seek advice from their institution to find out what kinds of uses fall under section 183 A state gallery is planning an exhibition of a special collection It wishes to include promotional thumbnail images and compressed format audio from the collection on its website Yes Provided the gallery takes appropriate limiting steps the flexible dealing provision will be available for orphan works and possibly other works 29 For the purpose of maintaining or operating the archives As mentioned earlier a gallery s collection falls under the definition of an archives in the Copyright Act However if the gallery in this scenario was run for profit it would not fall under the definition and could not rely on the flexible dealing provision Making material available to the public is one of the core operations of a gallery This proposed use would be part of the operation of the archives as promotion informs users and the public about current collection displays and exhibitions and also allows people in remote areas to experience the collection The use is non commercial This step could raise issues if for example the gall
53. s such as libraries in government departments or government archives may be able to rely on the Crown copying provisions under section 183 This is a statutory licence that allows expansive use of materials but is remunerable as under the Part VA and Part VB licences If your institution can rely on this provision for the proposed use then section 200AB will not be available If you are assisting a person with a disability and you are an educational institution check that the Part VB licence dealing with assistance for people with a print disability does not apply The Purpose of the Use There are three possible purposes of use under the flexible dealing provision If you work at a library in an educational institution it may be possible to rely on either the library purpose or the educational institution purpose Any institution can also utilise this provision to assist a person with a disability Library or Archives If you work at a library or archives you should be using the material for the purpose of maintaining or operating the library or archives This includes providing a service of a kind usually provided by a library or archives It also includes activities designed to maintain the current collection and arguably activities designed to keep the collection up to date It encompasses both the internal administration of the library or archives and providing services to users This is a broad purpose test that
54. s that are of commercial value and which may raise a possible conflict with normal exploitation For example if the collection contained a piece by a well known Russian author the library might have to take further steps to ensure the use did not conflict The use will not unreasonably prejudice the copyright holder Even when the copyright holder is unknown the library should still take some steps to ensure the copyright material is used appropriately In this example use of the material will be fairly restricted and only available outside the library for research and study after the users declare the material will not be used for a commercial purpose The university library may even be restricting the use more than necessary For example the library could certainly allow access for other fair dealing purposes such as reporting the news It could even consider allowing access to anyone provided users agree they will not use the material for infringing purposes The use is a special case Considering all the steps this appears to be a special case The library has proposed to take a number of measures to limit how the material can be accessed and used This case seems particularly special given the materials are orphan works and could not be used at all since permission of the copyright holder could not be obtained A library wishes to digitise works to allow public access to parts of the collection that are not stored onsite The pu
55. se the exact compilation required for the class There are also no licences offered for compilation of film extracts in this way so this use will not compete with the normal exploitation of the films The use will not unreasonably prejudice the copyright holder In this scenario the teacher s proposed use of the copyright material is already quite narrow as they are only making one copy and will only be using short extracts from the films There would therefore be no problem with prejudice to the copyright holder This use is a special case As noted the teacher is limiting their use of the material and their reasons for the use of the material align with the educational instruction purpose The special case requirement seems to be met As mentioned on page 8 section 200AB cannot be used if it involves breaking a digital lock This will prevent for example use of copy protected DVDs 34 A classroom only has a DVD player A teacher therefore wishes to format shift a film from VHS to DVD format to show to the class Yes The flexible dealing provision is available after checking whether the film is available to purchase as a DVD The use does not conflict with normal exploitation It is this step that the teacher will need to consider most carefully before deciding to format shift the film If the film is currently available in DVD format then format shifting the film would enter into competition with a common type of comme
56. these cases the library can work through the steps and make any necessary modifications to the intended preservation actions to bring the use under the flexible dealing provision A library wishes to make preservation copies of born digital material in its collection The digital material is commercially available online but the library wants to make preservation copies of the material to ensure that it continues to be available in the future for example even after the material has been taken off the original web page Yes The flexible dealing provision allows the library to make preservation copies of born digital material There is no other exception The preservation provisions would not apply in this scenario as these provisions require the material to be commercially unavailable that is the material cannot be obtained within a reasonable time at an ordinary commercial price The use does not conflict with normal exploitation The material in this scenario might include for example online articles that can only be accessed through a subscription If the library proposed to make its preservation copies available to the public at the same time that the articles were available on a subscription basis this would clearly conflict with the normal exploitation of the material However in this scenario the library is not proposing to make the preservation copies generally available so there would not appear to be any conflict
57. ular use but whether your use if done by every person entitled to rely on section 200AB would deprive copyright holders generally of significant or tangible gains It can also be argued that the references in section 200AB to the copyright work require a more specific consideration of the impact of conflict with a particular copyright holder s normal exploitation The Act is unclear In any event it is probably best not to assume that one little use doesn t hurt anyone and in the case of a significant amount of use to seek advice These issues will also be relevant to analysing the risk of relying on section 200AB 6 Explanatory Memorandum Copyright Amendment Bill 2006 Cth 110 7 Australian Copyright Council Special Case Exception Education Libraries Collection Sydney Australian Copyright Council 2007 at 9 13 Some examples of situations where it is likely your use will conflict with the copyright holder include if you are using the material to make an adaptation reproduction new format that will be available for sale if there is a common licence that you could obtain for the intended use Some situations where it is likely that your use will not conflict with the copyright holder include if you cannot purchase the adaptation reproduction new format of the material if the material you wish to use has been abandoned by the copyright holder and so they are clearly not exploiting nor intendi
58. 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 The sorts of questions you can ask here are How does the copyright holder usually make money from their copyright material Will your proposed use enter into competition with the copyright holder s use Will your proposed use deprive the copyright holder of significant or tangible commercial gains How might the copyright holder want to make money from their copyright material in the near future Is it likely that your use would deprive the copyright holder of future economic gains Normal Exploitation You need to assess whether the way you want to use the material is a use that a copyright holder normally charges for The types of licences that would be considered normal exploitation would be those that copyright holders commonly use to exploit their works such as those offered for the performance of a play or music or to copy materials such as hymns for a church or sheet music for an orchestra There are differences of opinion on exactly what assessment section 200AB requires an institution to perform in relation to normal exploitation The Australian Copyright Council for example states that an institution needs to consider not just the immediate impact of the partic
59. with normal exploitation 23 If the library later wished to make the preservation copies available online to the public when the articles were no longer commercially available it may be able to do this under section 200AB but would need to work through the steps again The use will not unreasonably prejudice the copyright holder The library has attempted to limit prejudice to the copyright holder by ensuring the preservation copies are not made available to the public Information such as author and copyright holder details are also preserved in the new copies There should be few problems satisfying this step The library may also need to check if there are terms and conditions associated with the born digital material as these may restrict certain uses A university library has a specialist collection of USSR material for example anonymous political pamphlets and wishes to make it available electronically The library plans to limit access to the material to three people at any one time It will only be available online off the premises to people using the material for research and study and who have declared they will not use the material for a commercial purpose A substantial quantity of the material is orphan works Yes The university library is likely to be able to do this for a large quantity of the collection but should look at the items in detail to check that particular problems will not arise at certain section

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