Copyright management policy
INTRODUCTION
The ALRC has responsibilities to manage copyright from two perspectives: as the owner of copyright material, and as the user of copyright material owned by others. This policy sets out the ALRC’s approach to the management of copyright, and documents the ALRC’s obligations in this area.
For the purposes of the Copyright Act, the ALRC is considered to be a part of the Crown. This has not been the subject of formal legal advice or judicial determination, but the ALRC has operated on this basis since its establishment in 1975. Part VII of the Copyright Act applies special provisions to the Crown, giving the ALRC greater scope to use copyrighted material without permission and claim ownership of copyright in certain materials.
OWNERSHIP OF MATERIAL CREATED BY OR FOR THE ALRC
As the ALRC is considered to be a part of the Crown under the Copyright Act, ownership in material created by the ALRC officially lies with the Commonwealth, and all ALRC material is marked as copyright of the Commonwealth of Australia. The ALRC manages its copyright material on behalf of the Commonwealth.
Under Part VII of the Copyright Act, the ALRC owns copyright in the following circumstances:
- the work is made by, or under the direction or control of, the ALRC; or
-
the work is first published in Australia by, or under the direction or control of, the ALRC.
This includes literary, dramatic, musical or artistic works, and sound recordings and artistic films. They can be in electronic or hard copy form. Publication includes publication via the ALRC website.
This default position of ownership may be modified by arrangement.
This means that all work produced by ALRC Commissioners, staff or interns for ALRC purposes is considered to be the copyright of the Commonwealth. Similarly, all work produced under contract for the ALRC is copyright of the Commonwealth, unless the contract otherwise stipulates that ownership of the copyright is to be vested in the author or another person. This includes computer programs or artworks developed for the ALRC under contract or agreement.
Articles or other contributions elicited by the ALRC for ALRC publications, or first published in Australia by the ALRC, similarly will be considered the copyright of the Commonwealth unless there is an agreement in place to modify the situation. This applies to articles contributed to the ALRC’s journal Reform.
Submissions made to the ALRC are not made by or under the direction or control of the ALRC, and therefore copyright remains with the author of the submission. Publication of the submission on the ALRC website or another format would, however, automatically vest ownership of copyright in the Commonwealth at the time of publication (if the submission had not been previously published by the author). To encourage continuing open submission to ALRC inquiries, and simplify copyright issues, the ALRC wants copyright ownership to remain with the author. Therefore, before the ALRC decides to publish submissions made to an inquiry, the following steps should be taken:
- standard correspondence to be sent to submitters should indicate that the ALRC will publish the submission and how it will be published, and that copyright will remain with the author;
- a statement noting that copyright remains with authors of published submissions should be incorporated into ALRC publications, including the ALRC website.
Moral rights of creators
Part IX of the Copyright Act confers moral rights on authors and live performers that can be exercised and enforced regardless of who owns the copyright in a work. In particular, authors have a right of attribution of authorship of a work. The attribution is to be clear, and reasonably prominent.
To acknowledge properly the moral rights of staff, interns, contractors and contributors who are authors of ALRC material, the ALRC will take the following actions:
- Names of Commissioners, staff, interns and other contributors to the content of ALRC Inquiry publications will be set out in a List of Participants included in each publication.
- Names of Commissioners, staff, interns and other contributors to the content of other ALRC material will be acknowledged clearly when the work is published, unless the work is considered to be a conglomerate of work and/or has multiple authors, for example, media releases, website content, pamphlets, and articles describing ALRC work that are compiled from existing works.
- Authors of artistic works, including photographs, where known will be acknowledged in an appropriate position for the publication, for example, inside the front cover of a journal cover, or directly underneath or adjacent to the published work. Where appropriate, the name of the work should also be identified.
The way in which an author is identified can be modified by agreement between the ALRC and the author.
MANAGING ALRC COPYRIGHT MATERIAL
Considering who should be the copyright owner
When signing or making any new contract or agreement for the creation and/or publication of a work, the ALRC should give consideration to whether copyright should be vested in the ALRC and therefore the Commonwealth (the default position) or whether it would be appropriate for the author to retain copyright. Some contractors may require retention of copyright as a term of the contract.
Where it is considered appropriate that the copyright remain with the author, the ALRC should ensure that this is clearly set out in a contract, agreement, or in a published statement (whichever is the most appropriate method).
Where copyright does remain with the author, the ALRC should negotiate a licence to use the copyright material (see below about using material where copyright is owned by another person or organisation). This should be set out in a contract or agreement, and encompass the full range of purposes for which the ALRC is likely to use the material. In many circumstances there will be no cost for the licence, but this needs to be clarified.
There may also be situations where the ALRC submits material to other publishers for publication, eg, an article for publication in a legal journal. In some circumstances the terms and conditions of submitting the article include transferring ownership of copyright in the material to the publisher. The ALRC should be aware of these situations, and give consideration to whether it accepts this condition of publication. Where this is considered acceptable, the ALRC should ensure that appropriate attribution of authorship is given in the publication, including attribution of particular authors where this is appropriate.
Copyright remains in place for many years. In most cases, Commonwealth copyright subsists for 50 years after publication of the work (or, in the case of artistic works, 50 years from the year of creation). For non-government copyright, the copyright in original works subsists for 70 years after the death of the author. It is possible that a dispute could arise at any time during the existence of the copyright.
To assist the ALRC with any possible legal disputes over copyright issues, the ALRC maintains an Intellectual Property register. The register includes details of any contract or agreement involving the creation, publication or transfer of a copyrighted work, the agreement in relation to copyright, and the date at which the copyright ceases. It is not necessary to list all ALRC publications on the register, unless they involve an agreement regarding copyright that departs from the default position, or a clarification where there may be confusion over ownership.
Making use of ALRC copyright material
In the absence of any statement to the contrary, the copyright in all ALRC materials is ‘locked up’ and permission is needed for any person to reproduce the materials, including downloading, printing, and photocopying, or to email the material (this is considered a ‘communication’ which is protected by copyright).
The ALRC takes the following general approach to the management of its copyright material:
- ALRC materials should be given widespread distribution. The ALRC encourages appropriate use of its material for study, research and other non-commercial purposes that do not breach copyright.
- The integrity of ALRC material should be protected by ensuring the public does not misuse or misrepresent ALRC material.
- Works with a commercial value should be protected with appropriate restrictions on reproduction.
- To implement this approach, the ALRC uses the following statements in relation to copyright on its published materials:
General ALRC publications
This work is copyright. You may download, display, print, communicate electronically and reproduce this material in whole or part, subject to acknowledgement of the source, for your personal, non-commercial use or use within your organisation. Apart from any use as permitted under the Copyright Act 1968, all other rights are reserved.
ALRC website
This work is copyright. You may download, display, print, communicate electronically and reproduce this material in unaltered form only (retaining this notice) for your personal, non-commercial use or use within your organisation. All Australian Law Reform Commission publications available through this site are copyright. Apart from any use as permitted under the Copyright Act 1968, all other rights are reserved.
ALRC Journal Reform (subscription-based publication)
This work is copyright. Apart from any use as permitted under the Copyright Act 1968, all other rights are reserved.
Consideration should be given to the appropriate wording of the copyright statement to be displayed in any new form of publication developed by the ALRC.
Copyright statements must also include advice on who a person can contact to obtain authorisation for further dealings with ALRC materials. Authorisations in relation to Commonwealth copyright are managed at a whole of government level by the Commonwealth Copyright Administration within the Attorney-General’s Department. The ALRC Policy Approval for Use of ALRC Copyright sets out details on how the ALRC should manage a request for use of ALRC copyright material.
USING MATERIAL WHERE COPYRIGHT IS OWNED BY ANOTHER
Section 183 of the Copyright Act gives the ALRC, as part of the Crown, a broad statutory licence that allows it to use other people’s copyright without first asking permission of the copyright owner. This only applies where the use is done for the ‘services of the Commonwealth’. The section does not cover copying or communicating of material done by ALRC Commissioners, staff or interns for personal use or any other non-ALRC purpose.
The statutory licence allows the ALRC to copy or communicate any material, in part or in its entirety, and to make as many copies as required without first asking permission. However, the ALRC still has an obligation to notify the copyright owner of the use, and to provide equitable remuneration for the use of the copyright. This can be done in a number of ways:
- whole of government agreements with declared collecting societies who collect and distribute remuneration for government copying of material (but not communication of material);
- voluntary ALRC agreements with collecting societies to cover other particular uses of copyright (eg, performing music, communicating documents via email); or
- contracts or licences negotiated individually with copyright owners.
Where the use is consistent with an express statement allowing for the use of the copyright—eg, a copyright statement on a website which allows downloading, copying and publication with appropriate attribution—then notification and payment of remuneration is not required. Similarly, if it can be implied from all the circumstances that the use is authorised, notification and payment of remuneration is not required.
Declared collecting society arrangements
The Copyright Agency Limited (CAL) is the collecting society declared under the Copyright Act for government copying of print material. The Commonwealth has entered an agreement with CAL, and the ALRC is subject to this agreement. The agreement covers:
- photocopying of print materials, ie, books, journals, magazines, photographs;
- photocopying of newspaper clips and digital copying of newspaper clips;
- copying of print music (ie, sheet music).
Separate notification to copyright owners is not required, and the ALRC receives an annual invoice from CAL to cover remuneration payable for this copying.
Liability in relation to photocopying of print material is determined by sampling a small number of departments and agencies with the usage in those agencies being treated as if it were applicable to all, and calculated for the ALRC according to the number of full-time equivalent employees. Liability in relation to photocopying and digital copying of newspapers is determined by estimating individual usage within the ALRC.
Screenrights is the declared collecting society for government copying of audio-visual material. The ALRC has entered an agreement with Screenrights that was negotiated for the Commonwealth. The agreement covers:
- copying of sound recordings and cinematograph film; and
- copying of television or sound broadcasts.
Separate notification to copyright owners is not required, and the ALRC receives an annual invoice from Screenrights to cover remuneration payable for this copying.
Liability in relation to copying of audio-visual material is determined by the ALRC conducting a sample survey of its copying for three months of each year.
The Research Manager is responsible for ensuring that the ALRC complies with its obligations under the CAL and Screenrights agreements.
Voluntary ALRC agreements with collecting societies
Internal communication of material
The Commonwealth agreement with CAL includes an ‘add-on’ voluntary component covering internal communication of material, including newspaper clips. Internal communication includes:
- internal emailing of material; and
- addition of material to an internal intranet.
The ALRC is subject to this ‘add-on’ component of the CAL agreement. Separate notification to copyright owners therefore is not required for these activities. The ALRC makes an annual payment to CAL for these activities as part of its overall agreement with CAL.
Performance of music
The ALRC has entered a model agreement with the Australasian Performing Right Association (APRA) to cover performance of music by, or under the direction of, the ALRC. Performance of music includes playing music using CD or DVD players or radio or television sets (whether separately as audio or as audio-visual material), and also live performance of music. The ALRC’s agreement with APRA covers performance of music:
- for the benefit of employees; and
- at the ALRC or at other functions and places provided that the general public is not admitted.
This will include performance of music at ALRC functions, seminars and conferences that include invited guests, stakeholders or seminar/conference participants.
Separate notification to copyright owners is not required for these activities. The ALRC makes an annual royalty payment to APRA in accordance with the terms of the agreement, based on the number of full-time equivalent employees.
Communication of music to telephone callers on hold
The ALRC has a licence with APRA to cover the communication of musical works to telephone callers on hold. The ALRC pays an annual licence fee to APRA based on the number of external phone lines where the hold music is available.
Situations not covered by blanket agreements
Any other use of copyright material must include consideration of the need to notify the copyright owner, and provide equitable remuneration for the use of the copyright. These situations may include:
- publication of materials in hard copy ALRC publications;
- publication of materials on the ALRC website;
- copying of software;
- performance of (ie, showing) a film for staff and others; and
- copying of a DVD for distribution to staff.
As noted above, notification and payment of remuneration is not necessary if there is an express statement or it can be implied from all the circumstances that the use is authorised. In some cases, the purchase of copyrighted material may include a licence to make a certain number of copies or to publish in a certain way.
It is not legally necessary to notify the copyright owner prior to use of the copyright. However, it may be appropriate to notify prior to the use and negotiate an appropriate licence so that the ALRC knows in advance the cost of the use. In some cases the licence to use the copyright may be given for no cost. Disputes over licences can be taken to the Copyright Tribunal of Australia.
Conditions of use of copyrighted material
As indicated above, the ALRC has a broad statutory licence to use copyright material in whole or part and to make as many copies as it likes without permission. However, any conditions set out in the negotiated licence to use the copyright must be complied with. Any use which extends beyond the agreed licence must be the subject of an additional licence, and may lead to additional cost to the ALRC.
Conditions of use set out in a licence could include:
- appropriate attribution of the source of the material;
- limits on the number of copies that can be made;
- performance for staff only; or
- publication in material available at no cost to the public.
At all times the ALRC must properly acknowledge the moral rights of authors and live performers. This includes attribution of authorship of the work or the performer in a clear and reasonably prominent way. There is also a right to ensure there is no false attribution of authorship or performance, and that the material will not be the subject of derogatory treatment. The way in which an author or performer is attributed can be set as a condition of a licence of use of the copyright.