Amazon Kindle 2 Wireless Ebook Reader by goXunu reviews http://www.flickr.com/photos/43602175@N06/4069260433/

PART 2FLEXIBLE DEALING

DIGITAL CHALLENGES

Exceptions – Flexible Dealing (s200AB)

Available online at:

http://www.digital.org.au/alcc/resources/documents/FlexibleDealingHandbookfinal.pdf

Also:Copyright in Cultural Institutions Group‘Flexible Dealing and Cultural Institutions’http://nma.gov.au/shared/libraries/attachments/about_us/cici/statement_principles/files/35143/CICI_Statement_Principles_Section_200AB.pdf

Exceptions – Flexible Dealing (s200AB)

A. Is the use allowed under another section of the Copyright Act? Fair dealing, library and archival copying, statutory licence, consumer exceptions, section 183

B. For the purposes of “maintaining or operating” the library or archives? Or for “educational instruction”?

C. Does the use meet the requirements of s200AB? The use must:

• Not conflict with normal exploitation of the work;

• Not unreasonably prejudice the copyright holder; and

• Be a special case.

Berne – Federal Parliament Square by Kecko http://www.flickr.com/photos/kecko/5765572304/

Providing online access to collection material

Apply the 3 step test

Make sure the use does: • Not conflict with normal

exploitation of the work;

• Not unreasonably prejudice the copyright holder; and

• is a special case.Digital Archive, Boston Institute of Contemporary Art by Peter Alfred Hess http://www.flickr.com/photos/peterhess/5806305467/

Section 200AB and barriers to placing material online

• Digitisation involves circumvention of TPM;

• Commercial availability of works

• Existence of a licence?

Example: Placing thumbnail images online

Format shiftingWhere not covered by preservation copying or consumer exceptions

The use does: • Not conflict with

normal exploitation of the work;

• Not unreasonably prejudice the copyright holder; and

• is a special case.VHS Heaven...or Hell by makelessnoise http://www.flickr.com/photos/makelessnoise/203559383/

Orphan Works

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

Locating the copyright holder Before turning to the three step test under s200AB, you need to demonstrate you’ve taken reasonable steps to contact the copyright holder:

“reasonable steps”– considerations:

• Nature of the work – commercial or non-commercial

• Age of the work• Published or unpublished work• Potential concerns of the creator – deceased,

alive, interests of the estate• Extent of the planned use• Reasonable enquiries of others• Common sense

Orphan WorksAfter taking reasonable steps to locate the copyright holder

The use does: • Not conflict with

normal exploitation of the work;

• Not unreasonably prejudice the copyright holder; and

• is a special case.

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

Orphan Works – Large scale uses and “special case”Where collection consists predominantly of orphan works

Scalable search:

• Conduct reasonable enquiries into a proportion of the collection

• “reasonable enquiries” - considerations from previous slide

Eaglebrook School Archives, the 1960s by Eaglebrook School http://www.flickr.com/photos/eaglebrook/5549951920/

Orphan Works

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

Reproducing orphan works ‘in good faith’.

Swinburne University Orphan Works statement:

‘The University is continuing to endeavour to trace the copyright owner(s) and in the meantime this item has been reproduced here in good faith. We would be pleased to hear from copyright owner(s).’

Managing digital content licences

Space Shuttle Program, San Diego Air and Space Museum Archives, http://www.flickr.com/photos/sdasmarchives/6521818485/

• Consortial purchasing – Electronic Resources Australia, CAUL/CEIRC

• Individual subscriptions• Terms of use, prohibited/restricted

uses

Example 1, licence terms of use: “Licensee, the Institutions and Authorized Users may use the Licensed Materials for purposes of research, education or other non-commercial use as

follows: Display. Licensee, the Institutions and Authorized Users shall have the right to electronically display the Licensed Materials. Digitally Copy. Licensee, the Institutions and Authorized Users may download and digitally copy a Reasonable Amount of the Licensed Materials. Print Copy. Licensee, the Institutions and Authorized Users may print a Reasonable Amount of the Licensed Materials. Recover Copying Costs. Licensee and the Institutions may charge a reasonable fee to cover costs of copying or printing portions of Licensed Materials for Authorized Users. Course Packs. Licensee, the Institutions and Authorized Users may use a Reasonable Amount of the Licensed Materials in the preparation of Course Packs or other educational materials. Electronic Reserve. Licensee, the Institutions and Authorized Users may use a Reasonable Amount of the Licensed Materials for use in connection with specific courses of instruction offered by Licensee. Analysis. Authorized Users shall be permitted to extract or use information contained in the Licensed Materials for educational, scientific, or research purposes, including but not limited to extraction and manipulation of information for the purposes of illustration, explanation, example, comment, criticism, teaching, research, or analysis. Scholarly Sharing. Authorized Users may transmit to a third party colleague in hard copy or electronically, minimal, insubstantial amounts of the Licensed Materials for personal use or scholarly, educational, or scientific research or professional use but in no case for resale or commercial purposes. In addition, Authorized Users have the right to use, with appropriate credit, figures, tables and brief excerpts from the Licensed Materials in the Authorized User’s own scientific, scholarly and educational works. Inter-Library Loan (“ILL”). The Institutions shall be permitted to use Reasonable Amounts of the Licensed Materials to fulfill occasional requests from other, non participating institutions, a practice commonly called Inter-Library Loan. Customer agrees to fulfill such requests in compliance with Section 108 of the United States Copyright Law (17 USC §108, “Limitations on exclusive rights: Reproduction by libraries and archives”) and the Guidelines for the Proviso of Subsection 108(2g)(2) prepared by the National Commission on New Technological Uses of Copyrighted Works (CONTU).”

Example 2, licence terms of use: “(a) You, subject to clause 4 below, may:

(i) Allow Authorised Users to have access to the Work from the Publisher's Server via the Secure Network;(ii) Access, search and view the Work for the purpose of internal marketing or testing or for training Authorised Users or groups of Authorised Users.

(b) Authorised Users may, subject to clause 4 below:(i) Access, search and view the Work for personal use only;(ii) copy and paste one chapter of each title in the collection in question, or up to 5% of the pages from the total collection, whichever is the greater, for personal use only, during any given four-week period, unless otherwise stated in a

collection;(iii) make printed copies of one chapter or up to 20% of the pages from the totalcollection, whichever is greater, for personal use, during any given four-week

period, unless otherwise stated in a collection.

(c) Nothing in this Agreement shall in any way exclude, modify or affect any of Your statutory rights under applicable copyright law.”

Other digital challenges

•Accessing withdrawn/retracted works•Contract overriding copyright exceptions•Mass digitisation•Collecting digital-borne material

The ‘five year plan’ for copyright law reform

Australian Law Reform Commission inquiry into copyright

WIPO discussions on exceptions for libraries and archives

Trans-Pacific Partnership Agreement

Thank you

Ellen BroadCopyright Law and Policy AdviserAustralian Libraries Copyright CommitteeAustralian Digital Alliance

t: 02 6262 1273w: digital.org.aue: ebroad@nla.gov.au