Please Note: This "Information Access for Universities" was provided to all Australian Universities in 2002 by the Australian Vice-Chancellors' Committee (AVCC) now called Universities Australia. These FAQs are currently being updated and a new version will be released in 2008.
Information Access for Universities
Commentary and answers to frequently asked questions about copyright and the PART VA and PART VB educational statutory licences.
July 2002
Contents - Click on the topic line to go to the text
1. Part VB – Print and Graphic Copying and Communication: General 1
1.1 Introduction
1.2 The new communication right
1.3 What is a communication?
1.4 Copying and communication limits – how do they apply?
1.5 How do the "insubstantial portions" (s.135ZG and s 135ZMB) provisions operate?
1.6 What electronic copying is allowed under Part VB?
1.7 When is there an implied licence to copy from the Internet?
1.8 What copyright warning notices must be given when copying or communicating electronically?
1.9 What about works that are out of copyright? Does the "published edition" copyright prevent them from being copied?
1.10 When can a university copy for "subscribers" for a fee?
1.11 What are the rules regarding copying and communication of artistic works?
1.12 How does the Part VB licence apply to the taping of a recital, performance or lecture?
1.13 Can the Part VB licence be relied on for copying and communicating for off-shore students?
1.14 Copying and communicating for students with a print disability – how does the Part VB licence apply?
1.15 Copying with permission of copyright owner – must you mark?
1.16 Can you charge students for copying of material?
1.17 Printery issues
2. Part VB – Print and Graphic Copying: Questions Which Relate To The Hardcopy Survey
2.1 Statutory exceptions to licensed copying
2.2 What about if we have a free licences, or are copying or communicating copyright free material?
2.3 Copying and communicating for students with a print disability – how does the Part VB licence apply?
4. Part VA – Audio-Visual Copying and Communication: Questions Which Relate to Sampling and Record Keeping
4.1 Digital practices – what can we do under the Part VA licence?
4.2 Do we need to record copying by students for student presentations?
4.3 Can we copy from "unauthorised" tapes?
4.4 How should we record copying for conversions to PAL (Australian) format?
4.5 Can we copy from commercially purchased or hired video tapes?
4.6 Can we copy for off-shore students?
4.7 Can we copy satellite broadcasts?
4.8 Can we copy broadcasts for use in a videoconference?
4.9 Can we copy music – LP records, CDs and audio-tapes?
4.10 Can we copy for students with a hearing disability?
5. Part VA – Audio-Visual Copying and Communication:Questions Which Relate to Record Keeping Universities
5.1 Copying commercials
5.2 Late reporting
5.3 Use of ID numbers
1. Part VB – Print and Graphic Copying and Communication: General
1.1 Introduction
The Part VB statutory licence allows universities to copy and communicate print and graphic works for the educational purposes of the university, or of another university which has issued a remuneration notice to CAL.
Part VB covers all copying of print and graphic works – photocopying, copying to slides, microfiche or overhead transparencies, scanning into electronic form and copying from the web – provided it is for the educational purposes of the university (or another university with a remuneration notice) and otherwise complies with the strict rules set out in the Act and the Regulations.
1.2 The new communication right
The Digital Agenda amendments to the Copyright Act which came into force on 4 March 2001 introduced a new right for copyright owners; the right to communicate a work to the public. Communication is defined in the Act as meaning each of "making available online" and "electronically transmitting". It is important to keep in mind that as with the "reproduction right" the "right" is the copyright owner's right. The introduction of this new right means that copyright works can not be communicated, other than in accordance with the strict rules contained in Part VB, in the absence of some other licence or defence.
- A work is made available online when it is uploaded onto a server in a form which is able to be accessed. If a work is uploaded onto a server in a form which is not able to be accessed it is not being "made available" within the meaning of the Act.
- A work is electronically transmitted when it is sent as a file attachment or an email to another person.
It is NOT necessary for the university to seek the permission of copyright owners in order to make works available on-line (or copy digitally) within the limits imposed by the Part VB licence, UNLESS the university has already entered into contracts with information providers which impose restrictions on how the university can make material available. For example, if the university has purchased CD-ROMS for use in the library, the terms of the contract may include restrictions on copying the CD-ROMS or on making them available for use by students. These restrictions arise not because of Part VB, but because of contractual terms which the university has agreed to in order to obtain access to material. In other cases, these terms may grant broader rights to copy and communicate than are contained in Part VB.
1.3 What is a communication?
Q: Is the provision of a hyptertext link (hotlink) to a URL of a specific document a communication?
A: It is unlikely that a court would hold that a university had made a work available online simply by providing a hypertext link to the URL of a specific document. Record-keeping universities do not need to record this activity as a communication.
If a university is aware that the site to which it is providing a link contains infringing material (ie material which has been copied onto the website without the permission of the owner of copyright) it may be an infringement of copyright to direct students to the material. This is on the basis that the university might be held to be authorising students to copy the material on the site in breach of copyright. The risk is increased when the link is to a specific document. However, provided the material to which students are being directed is on the web with the permission of the owner of copyright, providing a URL to the material and directing students to it does not amount to infringement of copyright. A proviso to this is that a handful of cases from the U.S. have suggested that a party who provides a hypertext link to material might be held to have communicated or authorised others to copy that material. The better view is that an Australian Court would not decide such a case this way. Universities will be notified if this assessment changes.
Q: If one staff member sends another staff member a document (article or chapter of a book) as an email attachment, is this a communication within the meaning of the Act?
A: The answer to this question depends on the circumstances. The communication right applies to communications "to the public". There is no definition of "public" in the Act. A staff member who sends a work as an email attachment to a group of students has clearly exercised the communication right by "electronically transmitting" the work “to the public.” However, private communications from one person to another are not intended to be caught by this right. (Note however, that if something has to first be copied in order to be communicated, there may, in the absence of a defence such as fair dealing, be an infringement arising from this reproduction.) Until the courts offer further guidance on this question, some uncertainty will remain about the extent to which the electronic transmission of works between academics is likely to amount to a communication within the meaning of the Act.
1.4 Copying and communication limits – how do they apply?
The limits applying to how much of a work can be copied or communicated in reliance on the Part VB licence are set out in detail in the Guidelines on Print and Graphic Copying and Communication available at [hypertext link.]
There are no limits to the amount which can be copied in reliance on Part VB if the material is out of print. It is also permissible to copy more than 10 per cent of a work if the person who is doing the copying is satisfied, after reasonable investigation, that the work is not available within a reasonable time at an ordinary commercial price – s 135ZL(2). (If the work being copied is in electronic form, the test is whether the work is unavailable in electronic form within a reasonable time at an ordinary commercial price – s 135ZMD (2).) This copying must still be paid for.
Q: Do the copying and communication limits apply to the university as a whole, to each member of staff, or each subject being taught?
A: The answer, as it relates to copying of works, and electronic transmission of works, is unsettled. It is unclear, for example, whether it is open to two lecturers, teaching the same subject, to each copy or electronically transmit a different 10 percent of a work. The AVCC suggests the safer approach – which seems to have been accepted to date - is to adopt the view that the copying and transmission limits should be applied per subject, i.e. regardless of how many lecturers are teaching "Contracts 101" in a given semester, no more than 10 percent of a work (unless the work is unavailable for purchase within a reasonable time at an ordinary commercial price) should be copied or electronically transmitted to students by those lecturers (when their copying is aggregated).
However, it is very clear that the limits as they apply to communicating a work by making it available online apply to the university as a whole. For example:
If the Arts faculty has copied a chapter of Patrick White's Voss, and made this available on-line, no other faculty in the university can make another part of the same work available on-line in reliance on the Part VB licence until this first part is taken down. Failure to comply with this limit will result in loss of the licence for the second (and subsequent) portions of a work made available on-line.
There is some good news. This new strict copying limit does not apply to journal articles. Nor does it apply to off-line copying.
Q: If a chapter of a book is made available online, can a lecturer email a different chapter of that same book to his/her students?
A: The answer to this question depends on whether the lecturer was responsible for making the first chapter of the book available online. If so, the lecturer cannot email a different chapter of the same book to his or her students unless the lecturer is satisfied, after reasonable investigation, that the book is not available within a reasonable time at an ordinary commercial price. If the chapter which was made available online was made available by someone else within the university, the lecturer can – subject to what is said above regarding copying and communication limits – email a different chapter to his or her students.
Q: If scanning a book in circumstances where it has not been previously scanned, can the entire book be scanned and stored providing distribution to students will only involve one chapter or 10%?
A. No you cannot scan an entire book. As scanning is just another form of copying, you must scan within the copying limits contained in the Act. As a general rule, this is one chapter of a work or 10% of the pages.
Q. Is it OK for teachers to make multiple copies of a complete test from a book of practice tests for use with a class preparing for an exam? Some of the tests may be 10 or so pages long. That may be more than 10% of the work, but would one test count as one chapter?
A. One test would probably count as one chapter.
Q. A lecturer in constructing a study package (study guide and resource reader) has used less than 10% of a text in the reader but a number of quotes and graphics from the text in the study guide. Over the two books she would have used more than 10% of the text. Do we look at the cumulative use of the text material or assess use according to what is contained in each individual book?
A. You have to look at the cumulative use of the text material. The lecturer has copied more than 10% and may, therefore, be in breach of copyright. She should consult her Copyright Officer for advice if she wants to include all of the material in the two books.
Q. A lecturer would like to copy several articles on the same subject matter from one Special Edition journal. Given the articles are on the same subject matter is this acceptable practice?
A. It is acceptable to copy more than one article from a journal if they are on the same subject matter. This provision applies to both fair dealing copying and to copying done under the Part VB statutory licence. In any dispute with the copyright owner or CAL there may be an argument regarding the interpretation of "same subject". As a guide, however, it would probably not be permissible to copy more than one article in a law journal simply because all the articles related to law. If, on the other hand, there were two or more articles on a particular legal topic, it would probably be permissible to copy each of these.
Q. Do the rules relating to the use of journal articles apply to conference proceedings, ie can we use more than one article from a set of conference proceedings provided the articles are on the same subject matter?
A. It depends. If conference proceedings are published annually, they may be a periodical publication, and thus it may be permissible to copy more than one article if all are on the same subject matter. However, most conference proceedings are unlikely to fall within the definition of "periodical publication", with the result that only one article, or 10 per cent of the total pages, can be copied.
Q. How can we ascertain whether a book is still available or is out of print? Can we rely on advice from a book retailer? We have tried emailing and faxing publishers but it has been very hard to get responses.
A. If the retailer confirms in writing that it is out of print and you keep a record of that confirmation, that should be sufficient.
Q. Can the whole of a back issue of a journal be copied on the basis that it is no longer obtainable?
A. No. The provisions in s.135ZL(2) and 135ZMD(2) do not apply to periodicals.
Q. Our Technical Services Section are currently operating under a set of guidelines that I think are incorrect. According to their current guidelines, they do not make copies of publications that are out-of-print and unavailable for purchase if a copy of the publication is already held by the library. Copies are only made when a publication is out-of-print, unavailable for purchase and when a copy is not currently held by the Library. It is my understanding that current ownership of a publication is not a relevant issue in terms of the right to produce a copy of an out-of-print publication. Is this correct?
A. You can make a copy of a publication which is out of print and unavailable for purchase, regardless of whether a copy is already held by the library.
Q: Can we copy from an electronic version of an anthology?
A: The anthology provision (s 135ZK) – which allows universities to copy the whole or part of a work contained in a printed anthology (provided the work comprises not more than 15 pages in the anthology) – does not apply to copying from anthologies in electronic form. This does not mean that you cannot copy from such anthologies. You can copy such a work in reliance on the provision applying to copying of works in electronic form – s 135ZMD. In many cases, this provision will enable you to copy the entire work. Provided the work you wish to copy (eg a poem) has not been separately published, you can copy the whole of the work without further inquiry. If the work has been separately published, you cannot copy more than 10 per cent of the words of the work unless you are satisfied, after reasonable investigation, that the work is not available in electronic form within a reasonable time at an ordinary commercial price.
Q: I am aware that works which are made available online in reliance on the Part VB licence, and remain online for 12 months are deemed, after 12 months, to be re-copied and re-communicated. When does the 12 month period begin for works which were made available online prior to 4 march 2001?
A: The clock starts from 4 March 2001.
1.5 How do the "insubstantial portions" (s.135ZG and s 135ZMB) provisions operate?
An insubstantial portion is:
one or two pages of a literary or dramatic work which is hardcopy form; or
no more than one percent of the total number of pages in the literary or dramatic work if there are more than 200 pages (no more that one per cent of the words in the work if the work is in electronic form).
But note the following provisos:
· Copying or communicating the whole of a work will never fit within the insubstantial portion exemption. Accordingly, copies and communications of an entire article in a periodical publication, or the entire text of a pamphlet, cannot fall within the exemption.
· The exemption does not apply at all to artistic works or musical works. The copying of cartoons (and possibly graphs), as well as sheet music, will therefore fall outside the exemption.
· The copying or communication must be carried out on the premises of the university.
· A period of more than 14 days must elapse before a person relying on this provision can seek to copy any other part of the same work in reliance on it.
· Any parts of a work previously made available on-line in reliance on the insubstantial portion provision must be taken down before a person can make another part of the work available in reliance on this provision.
· The sections do not require that copying or communication done pursuant to the section include an acknowledgment of source. However, in any infringement action, a university will be better placed if it can substantiate the availability of the defence or exception. This will be a question of proof which will be made difficult if the source is not clear. It may be that as a matter of internal practice any copying or communication for which the exemption is to be should include a reference to its source. The need to take account of the right of attribution introduced by the moral rights changes to the copyright Act will mean that it is important to attribute author and source wherever practicable in any case.
1.6 What electronic copying is allowed under Part VB?
Q: Can I print newspaper articles from a CD-ROM and make then available to students in a printed book of readings.
A. Yes, provided the CD-ROM has not been obtained under a contract which prohibits this.
Q. Is it necessary to determine whether something has previously been digitised before scanning under the Part VB licence?
A. No. There is no "right of first digitisation." Part VB allows universities to scan into digital form whatever material they want, provided the copying limits contained in the Act are complied with and the copying is for educational purposes.
Q. Is it an infringement of copyright to up-load a CD-ROM (which has been provided free for teaching purposes) on to a password protected network or website so that students can access it?
A. Depending on the terms of the free licence, it may not be an infringement of copyright. The question will be whether the copyright owner granted permission for the CD-ROM to be made available to students (by being copied and then made available online) in this way. If there is no such permission, then the University is unlikely to be able to rely on the Part VB licence to up-load more than 10 per cent of the CD-ROM on to a server.
Q. What risks should this University consider when establishing an infrastructure to support electronic copying and communication?
A. When establishing an infrastructure to support digital copying, you should ensure that the required copyright warning notices are placed on or near scanners and library terminals, that each licensed electronic copy and communication carries the required warning notice, and that the material being communicated is password protected and can only be accessed by students and staff of the university. Copyright works made available on-line in reliance on Part VB must NOT be available for access by the general public.
Q: Must the rights management information be digitised each time we digitise an article from a periodical publication? Usually the rights management information will not be on the article, but rather on the front page of the journal.
A: The provisions in the Act which prohibit the removal or alteration of rights management information attached to a copy of a work apply to electronic rights management information. There is no requirement in the Act to copy information about the ownership of copyright etc which appears at the front of a work in printed form.
If the work you are copying is actually an electronic version – with electronic rights management information attached – then you must not remove this information without the permission of the copyright owner. In most cases, however, the sort of electronic work which you are describing will have been commercially purchased by the university, and thus also subject to whatever restrictions have been imposed in the contract.
1.7 When is there an implied licence to copy from the Internet?
Q. In what circumstances can a university assume an implied licence to copy material that is on the Internet? Does "an implied licence to copy" mean that the whole of the work can be (i) printed out for your own use, (ii) printed out and multiple copies made for teaching purposes, (iii) included in an electronic version of a coursepack or other teaching material which is communicated to students?
Does "an implied licence to copy" mean that no payment need be made to CAL?
A. An implied licence to copy will only be found to exist where it is absolutely clear that notwithstanding that the owner of copyright has not said so expressly, he or she grants permission for the work in question to be copied without payment. This will depend very much on the facts of each particular case. Staff should be instructed not to presume, without consulting with their copyright officer, that there is an "implied" licence to copy anything which is published on the Internet.
Quite apart from the question of any "implied" licence, material published on the Internet – particularly material intended for educational use – will sometimes contain an express permission to make multiple copies, without payment, within certain limits and for certain purposes. Depending on the terms of such a licence (in particular whether it can be construed as including the right to communicate as well as the right to copy), the material may be included in an electronic coursepack or otherwise communicated to students. It would be wise to keep a print-out of the terms of the licence.
Provided universities comply with these limits, this copying can be done for free and without the need to rely on the Part VB licence. During the period of ahardcopy survey, it should be treated as other "copyright free" copying; i.e. there is no need to provide bibliographic details. Staff in Record Keeping universities are not required to record details of this copying.
In many circumstances, it will be simpler to provide students with the URL to web-based material. The student is then able to browse the material on-line without the university having copied anything. As discussed above in the section headed The New Communication right, a court is unlikely to hold that this activity amounts to a communication of the work by the university. If you have any doubts, you should consult your copyright officer.
1.8 What copyright warning notices must be given when copying or communicating electronically?
The Digital Agenda amendments to the Copyright Act impose strict obligations on universities to bring copyright obligations to the attention of staff and students.
Each licensed electronic copy and licensed communication MUST contain the following prominently displayed electronic notice:
Copyright Regulations 1969 WARNING This material has been copied and communicated to you by or on behalf of [ insert name of university] The material in this communication may be subject to copyright under the Act. Any further copying or communication Do not remove this notice. |
This notice MUST appear either before or at the same time as the material being communicated appears on the screen. It must also be applied to works which were copied into digital form and made available online before 4 March 2001 if those works are to remain online (in reliance on the Part VB licence) after 4 March 2001.
Q: Does this notice have to accompany a print-out?
A: No.
1.9 What about works that are out of copyright? Does the "published edition" copyright prevent them from being copied?
Under current copyright legislation, copyright in a published work continues until 50 years after the death of the author. A work which is out of copyright can be copied in whole or in part without any infringement of copyright in the work. There may be copyright in the published edition (layout etc of the particular publication) of a printed work. However, provided the copying of the out-of-copyright work is for the educational purposes of the institution, there is no infringement of any rights held by the publisher to the published edition – s 135ZH.
1.10 When can a university copy for "subscribers" for a fee?
Q. One of our Units copies the contents pages of journals into a publication which they then send out to their subscribers for a fee. Do they need the permission of the publishers to do this? Is there a further issue if the lists are published on the Internet?
A. If the "subscribers" are students or academic staff, and the publication is made available to them by the university for educational purposes, and there is no intention to make a profit on the publication, it will be covered by Part VB of the Act. If the publication is made available to these subscribers on a password protected website or via password protected e-mail, it is also covered by Part VB.
If the university proposes to make the copies under Part VB, and make this material available on the Internet in such a way that it can be accessed by the general public, or if the subscribers are not students or staff of the university, or of another university with a remuneration notice in place, then the copying and communication may well fall outside Part VB, and the university will need to seek the permission of the copyright owners for both activities.
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1.11 What are the rules regarding copying and communication of artistic works?
Under the Part VB licence, artistic works which are embedded in text for the purpose of explaining or illustrating the literary work (incidental artistic works), are treated differently from stand alone artistic works.
Artistic works (other than incidental artistic works) that are in hardcopy form can be copied without further inquiry provided you are sure that they have not been separately published.
If an artistic work in hardcopy has been separately published, it can only be copied if the person who makes the copies or causes them to be made has satisfied himself or herself, after reasonable investigation, that copies (other than second hand copies) cannot be purchased within a reasonable time at an ordinary commercial price.
If the artistic work you wish to copy is available in electronic form, and the copy you are making is from the electronic form, you can copy or communicated the work in reliance on the Part VB licence without the need to inquire into whether it is available for purchase.
Incidental artistic works can be copied without the need to make the inquiries discussed above.
Q. A book contains text and a number of images. I wish to copy only the images for educational purposes. Is it OK to copy all the images if the total copying does not exceed 10 per cent of the pages in the book? Or can I only copy 10 per cent of the images?
A. This question suggests that you believe that the 10 per cent limit – which applies to copying of literary works that are in hardcopy form – applies also to artistic works. It does not. (See discussion above).
Q. Books and journal articles include a range of "incidental artworks"; graphs, photographs, line drawings etc. With some of these, there may be a statement that "this work was reproduced with the permission of....". For most artworks it is not clear if the copyright owner of the book or journal article produced the artwork themselves or if it has been created by someone else and just reproduced. My assumption would be that artworks labelled "reproduced with permission of ...." cannot be copied or communicated as the copyright belongs to the producer and not to the copyright owner of the book or article; i.e., the 10% or 1 chapter rule from a book rule does not permit copying or communication of such artworks. Is this correct?
A. No. Sections 135ZM and 135ZME of the Copyright Act provides that under the Part VB statutory licence you can copy or communicate a page that includes an incidental artwork, regardless of whether the copyright in the artwork is owned by the copyright owner of the text or by the illustrator. The Act was amended in 1999 to provide that the remuneration for that page be divided between the owner of the copyright in the text and the owner of the copyright in the artistic work.
Q. Can I copy artworks where there is no indication of the creator/copyright owner?
A. While you are required to give us much bibliographic detail as you can (during the period of asurvey – if you are a sampling university – or on every occasion that you copy – if you are a record keeping university) it is CAL's responsibility to find the copyright owner. If the owner of the copyright in the artwork cannot be identified, you can still copy.
Q. Can I adapt or modify someone else's artwork to create my own artwork without breaching copyright? What degree of modification is required before a breach of copyright is not occurring?
A. This is not an easy question to answer and each case would need to be considered on its merits. Factors to be taken into consideration in deciding whether a modification remains a copy of the original might include whether or how much of the original artwork remains recognisable in the modification. If the modification is arguably still a copy, there is no breach of copyright involved in copying the modification, as long as the copying is done under the provisions of the Part VB licence. As a result of the recently introduced moral rights provisions of the Copyright Act, modifications which might adversely affect the integrity or reputation of the particular author or artist should be avoided.
Q. Can the university copy a film still published in a book, and a film still copied on a postcard, and use them in a brochure to explain and advertise a course?
A. A film still is an artistic work and can be copied under the Part VB licence if the copying is for the educational purposes of the university, and the artistic work has not been separately published. If the film still has been published on a postcard, you would need to be satisfied that the postcard is no longer available for purchase – a very difficult thing to do. Also, it is arguable whether the purposes of explaining or advertising a course is "copying for the educational purposes of the university", and the copyright owner may bring an action for infringement.
Q. If a lecturer makes a slide of printed visual material (eg, horticultural illustrations of gardens, vineyards, orchards, forests and the like), to show in class, can he then make a copy of this slide available to his students online?
A. Yes, subject to the restrictions discussed above in relation to copying artistic works (ie, they can only be copied without further inquiry if they have not been separately published. If they have been separately published, you must make the relevant investigations to ensure that they cannot be purchased within a reasonable time at an ordinary commercial price.)
Q: Can a lecturer make a slide of visual material downloaded and printed from the Web and show this in class to illustrate the lecture?
A: Yes. As the artistic work in this example is in electronic form, there is no need to make the investigations discussed above.
Q: Can I reproduce a photograph from a book, for the purposes of including this in a handout to students, even though I am taking no other work from the book?
A: Artistic works (other than incidental artistic works) can be copied without further inquiry provided you are sure that they have not been separately published. If the artistic work has been separately published, it can only be copied without permission if the person who makes the copies or causes them to be made has satisfied himself or herself, after reasonable investigation, that copies (other than second hand copies) cannot be purchased within a reasonable time at an ordinary commercial price.
1.12 How does the Part VB licence apply to the taping of a recital, performance or lecture?
Q. If a work is read or performed in a lecture (for example, a poem is read out), and the lecture is audio-taped by either the university or a student, is copyright infringed?
If a transcript of the lecture, or the audio, is put on a subject web site, is copyright infringed?
A. If the work is out of copyright, e.g. the author of the poem has been dead for 50 years, there is no problem copying or communicating in this way. However, if the work is still in copyright, technically copyright is infringed when the lecture is taped because more than a reasonable portion is being copied. The same would apply to putting a transcript of the lecture, or the audio tape, on a web-site. The difficulty with seeking to rely on the Part VB licence for such copying and communication is that unless the work has not been separately published, only 10 percent of the work can be copied or communicated.
1.13 Can the Part VB licence be relied on for copying and communicating for off-shore students?
The Part VB licence applies to copying and communication which takes place in Australia for the educational purposes of either the university doing the copying (or communicating) or of another university with a remuneration notice in place.
Material can be copied for and communicated to offshore students, as long as the students are enrolled as students of a university with a remuneration notice in place. If you are a sampling university, the copying and communication will be covered by your university's Remuneration Agreement with CAL.
Q. Our university prepares a course, which is taught on-line, for an organisation which is based off-shore. The students, who are enrolled as students at our university, are employees of the organisation which has commissioned the course. If the material for the course is copied on to CD-ROMS by our staff in Australia, in reliance on the Part VB licence, and these CD-ROMS are sent off-shore, up-loaded onto a server and accessed in this way by the off-shore based students, is there any breach of copyright involved?
A. The copying on to the CD-ROM would be covered by Part VB. If the up-loading onto the server took place off-shore, any reproduction involved in this activity would not be a matter for Australian copyright law, but may raise infringement issues under local copyright laws.
Alternatively, your university could make the material available to the off-shore students by way of a hypertext link to a site located on a server based at your university in Australia. Provided the material was only able to be accessed by students who were enrolled at your university, and was made available for the educational purposes of your university, both the initial copying on to CD-ROM and the up-loading on to your server would be covered by the Part VB licence. The appropriate copyright warning notice should be attached in such a way that it appears whenever the material is able to be accessed.
1.14 Copying and communicating for students with a print disability – how does the Part VB licence apply?
Q. What type of copying and communication can be carried out for students with a print disability?
A. S.135ZP allows a university which has the necessary Part VB remuneration notice in place to make a sound recording of a work in order to assist those with print disabilities or to copy or communicate the whole or part of a literary or dramatic work by making and/or communicating a Braille version, a large-print version, a photographic version or an electronic version of the work in certain circumstances. If the work has been separately published in the (eg sound recording, Braille, large print or electronic) version the university wishes to create, the university cannot do so unless the person making the version is satisfied, after reasonable investigation, that no new copy (ie not second-hand) of such a version of the work can be obtained within a reasonable time at an ordinary commercial price.
A photographic version is not the same as a photocopy.
S.135ZQ allows the university to make a "relevant reproduction" or "relevant communication" of the whole or part of a work for the sole purpose of making a Braille version, a large-print version, a photographic version or an electronic version for the purpose of assisting those with a print disability. Certain marking and notice requirements need to be complied with in order to obtain the benefit of the s 135ZQ licence with respect to these copies.
1.15 Copying with permission of copyright owner – must you mark?
Q Should copies which have been made with the permission of the copyright owner (as opposed to in reliance on Part VB) be marked to indicate this? How should they be marked? Should sampling universities mark these copies as well as record keeping universities?
A. There is no requirement in the Act to mark copies which are not made in reliance on Part VB. However, it is good practice to mark copies which are made with the permission of the copyright owner. The reason for this is that it assists in establishing the circumstances of the copying if this is ever challenged down the track. There is no particular form required. This advice applies as much to sampling universities (during the period of a sample) as it does for record keeping universities.
1.16 Can you charge students for copying of material?
Q Under what conditions can we charge students for copied material, eg course packs?
A. The only restriction imposed by the Copyright Act on charging students for material copied under the Part VB licence is that there should be no intention by the university to make a profit on the copies which are sold. However, note that the Higher Education Funding Act 1988 does impose certain restrictions on charging fees to students.
1.17 Printery issues
Q. Currently a print copy of any reading is provided to the University printery by the subject convenor. This copy is provided by copying the reading from either an item in the Library collection, from a lecturer's private copy or the copy is obtained through our Interlibrary Loan or Intercampus loan services. The quality of these copies varies. The printery makes a second copy of the reading. The second copy is them manually cleaned up, i.e., dark margins etc are removed and the cleaned pages are then affixed to clean pieces of paper. These pages are then photocopied again to form the master. The printery then scans the master to produce a file copy of the collection of readings and this file is then used to produce the print copies for distribution to the students. In total this process produces four print copies and a pdf file copy of each page of reading. An alternative process would be for the copy supplied by the academic staff member to be scanned and digitally cleaned up. This process would produce two print copies and a pdf file copy. Is it correct that scanning the lecturer supplied copy does not contravene copyright as it is covered by the VB licence?
A. Scanning the supplied copy does not contravene copyright. It is covered by Part VB.
Q. Is the pdf file copy that is produced to facilitate the final print copies for the students counted as a copy, or is this regarded as a temporary file that is used to produce the final print copies?
A. As a practical matter, the view has been taken that this intermediate "copy" should not be counted as a copy made in reliance on Part VB. This is the same whether you are a sampling university or a record keeping university.
Q. From the printery viewpoint it would be more efficient to retain the pdf file of a collection of readings on their system. Changes to a set of readings in subsequent years, i.e, deletion of some readings and addition of further readings, can be made by simply removing pages from the existing file and adding additional page images to the file for the new readings. Is retention and modification of this file allowed in the way described?
A. Retention and modification of the pdf file is allowed.
<2. Part VB – Print and Graphic Copying: Questions Which Relate To The Hardcopy Survey
Monitoring of copying in hardcopy form (eg. photocopying and slide copying) will be carried out at the same time as but separately from monitoring of electronic copying and communication.
2.1 Statutory exceptions to licensed copying
Q. How do we deal with insubstantial portions (s.135ZG - one or two pages, or no more than 1% of original material) when taking part in a survey and copying at a monitored photocopier?
A. Enter the copying on the Published Material Record Form. ACNielsen will deduct an agreed percentage (3%) of the total estimated licensed copying to account for this. Also, when copies of the material copied have been provided to ACNielsen, any copying of quotations and extracts of three paragraphs or less will be excluded from processing by CAL.
Q. How do we deal with legislation, law reports and unreported judgments (Section 182A) when taking part in a survey and copying at a monitored photocopier?
A. Enter the copying on the Published Material Record Form. This copying will be identified and excluded during processing by CAL.
Q. How do we deal with fair dealing copying (ss.40, 41, copying done for the purposes of research, study, criticism or review) when taking part in a survey and copying at a monitored photocopier?
A. Enter the copying on the Published Material Record Form.
Q. How do we deal with copying done under ss.49 and 50 (InterLibrary Loans) when taking part in a survey and copying at a monitored photocopier?
A. Enter the copying on the Published Material Record Form and mark it clearly ILL. This copying will be identified and excluded during processing by CAL.
Q. How do we deal with copying done for examinations (s.200(1)(b)) when taking part in a survey and copying at a monitored photocopier?
A. Enter the copying on the Published Material Record Form and mark it clearly "for examination". This copying will be identified and excluded during processing by CAL. Alternatively use the Unpublished Material Record Form for this copying. No bibliographic details will be required and the copying will not be counted.
2.2 What about if we have a free licences, or are copying or communicating copyright free material?
Q. How do we deal with material for which the university has a free licence to copy, when taking part in a survey and copying at a monitored photocopier?
A. Enter the copying on the Published Material Record Form. Each surveyed university will be required to provide a list of all copyright free licences to ACNielsen prior to the university's training session. This copying will be identified and excluded during processing by CAL.
Q. How do we deal with material for which individuals have permission to copy (that the university administration may not know about) when taking part in a survey and copying at a monitored photocopier?
A. Use the Unpublished Material Record Form for this copying. No bibliographic details will be required and the copying will not be counted.
Q. How do we deal with copying of material which is out of copyright (i.e. author has been dead for 50 years) when taking part in a survey and copying at a monitored photocopier?
A. Enter the copying on the Published Material Record Form. This copying will be identified and excluded during processing by CAL.
2.3 Copying and communicating for students with a print disability – how does the Part VB licence apply?
Q. Does the current Agreement with CAL cover copying and communicating for students with a print disability?
A. Yes. Division 3 of Part VB of the Act deals with copying and communicating for such students. Copies made in compliance with Division 3 are accordingly covered by the Agreement with CAL. There is no requirement for a separate remuneration notice. There are reporting requirements and other provisions which you need to be familiar with. (See Section 1.14 of the FAQ’s.)
3. Part VB – Print and Graphic Electronic Copying and Communication: Questions which relate to the Electronic use System
Q. Are we required to keep records of electronic copying and communications all year long?
A. Subject to one exception, it is only during a period that your University is being monitored for electronic use (probably no more than once every 5 years) that the University is required to keep such records. The exception is that the University must be in a position to know whether material which has been made available online pursuant to Part VB has remained online for more than 12 months. The reason for this is to enable the University, in the event that it is monitored, to be able to record any 12 month "roll-over" copies/ communications.
Q. How do I know whether I personally am required to keep records during the EUS?
A. You will be notified well in advance of EUS monitoring whether you are required to keep records during the monitoring period. EUS monitoring is focussed on central facilities and staff at the departmental level will rarely be involved.
Q. The EUS requires the University to indicate, where material is made available online, whether it was intended to be made available generally or was intended to be read by a specific group of staff or students. If a contract lecturer asks for an article to be made available online with the intention that his 100 contracts students read it, but he knows it may also be of interest to students studying torts, how should the question be answered?
A. Indicate "S" for specific and then indicate '100' at field "L" (the number of staff/students intended to read the material). You do not need to provide any information regarding the torts students.
Q. Is there a requirement to report Inter-Library Loan and other Library copying during the EUS?
A. The only copying and communication that is required to be reported to AC Nielsen is electronic copying/communication which takes place in centres (you will be notified in advance which locations at your University are "centres") and which is done pursuant to Part VB or which is for external students. Other fair dealing copying and ILL copying does not need to be reported.
Q. The EUS requires us to indicate whether material is copied/ communicated for internal students, external students, staff or other. What if we are copying for internal AND external students?
A. You must indicate one only of these categories. If the copying is intended for internal students as well as external students, estimate the numbers of each and do two separate entries.
Q. Can a University be required to repeat the EUS if it is not conducted properly?
A. Yes it can.
4. Part VA – Audio-Visual Copying and Communication: Questions Which Relate to Sampling and Record Keeping
4.1 Digital practices – what can we do under the Part VA licence?
Q. Can I make a copy of a program off air (say The Planets) and put it onto a CD-ROM disk which I will distribute to my DE students?
A. Yes. Each CD-ROM is a separate copy and must be marked. If you are a record keeping university, each CD must also be recorded (as a digital copy) and paid for.
Q. How many copies should be reported when a broadcast is copied to a VCR tape before a second, digital copy is made?
A. When the copying is done straight from a live broadcast to a digital file, with no VCR copy produced, there is one copy brought into existence, and this copy must be reported under record keeping and paid for.
When, for reasons of convenience, the copying is done to a VCR tape before a second, digital copy is made, both copies must be reported and paid for, notwithstanding that the first copy might be destroyed before ever being used.
Q. Is the permission of a copyright owner required before a "tape" can be digitised in order that it be made available to a class through a computer?
A. If the tape is of a broadcast, then the same principles as outlined above apply, i.e. the digital copy is a first or second copy which must be marked, and, if a record keeping university, recorded (as a digital copy) and paid for. No permission is required. If the material in question is commercially hired/purchased, the permission of all relevant copyright owners must be obtained. When the digitised material is made available to students through a computer (in a form which enables further copies or communications to be made) this is a communication, and (if a record keeping university) must also be recorded. You should ensure that a warning notice, in the form required, is given at the time of the communication. If the terminal through which the students view the tape is a 'dumb terminal' which does not allow for further copies or communications to be made, then, while the position will not be entirely clear until a court has considered the point, the better view is that the broadcast has not been communicated and there is no need to record anything but the copy.
Q. May a member of the academic staff digitise a non-digital copy of an off-air broadcast/transmission (which we have made) into an electronic file, for the "educational purposes" defined in the Copyright Act, for in-house 'multi-casting' (ie, viewing by several students at the same time, each student at the same point in the tape, but viewing the tape separately at separate monitors, all connected to the computer into which the tape has been digitised? Would this constitute making a (digital) copy from the (non-digital) tape, which we would have to record and report, or would this simply be a 'new technology' way of playing the tape (i.e. through a computer, with monitors), as distinct from the 'old-technology way (through a VCR, with a monitor)?
A. The process of making a digital copy (ie creating an electronic file) involves making a new copy. The new copy must be marked and, if a record keeping university, recorded (as a digital copy) and paid for. Making the material available to students in this way may also involve an exercise of the communication right. Whether or not it does will probably depend on whether the computer through which the material is viewed allows for further copies or communications to be made. (The legislation is unclear on this point, and given its recent introduction there has not been time for the issue to come before the courts.) If it does not, there is no communication. If it does, there is a communication. If you are a record keeping university, this communication must also be recorded. There is only one communication, not several. You should ensure that the required copyright warning notice is given at the time of the communication.
Q. May a member of the academic staff do the same thing (as above) for in-house 'streaming' (ie, viewing by several students, but each student at a different point in the tape (ie, 'video on demand'), viewing the tape at separate monitors, all connected to the computer into which the tape has been digitised? Would this constitute making a (digital) copy from the (non-digital) tape, which we would have to record and report?
A. Once again, the process of creating a computer file copy of the broadcast involves making a fresh copy which must be marked and (if a record keeping university) recorded and paid for. As with the example above, if the computer through which the material is viewed allows for further copies of communications to be made, there is also a communication of the copy, and this must also be reported if you are a record keeping university. There is only one communication, notwithstanding that many students are able to view the material.
Q. May a member of the academic staff do the same thing (as above) for multi-casting or streaming to fellow academic staff (as distinct from students)?
A. Yes, provided this was for the educational purposes of the university.
Q. 1. May a member of the academic staff digitise a commercially purchased video tape (ie, not a copy of an off-air broadcast/transmission which we have made) into a computer, as an electronic file, for the "educational purposes" defined in the Copyright Act, for in-house 'multi-casting' (ie, viewing by several students at the same time, each student at the same point in the tape, but viewing the tape separately at separate monitors, all connected to the computer into which the tape has been digitised?
Q2. May a member of the academic staff do the same thing, for in-house 'streaming' (ie, viewing by several students, but each student at a different point in the tape (ie, 'video on demand'), viewing the tape at separate monitors, all connected to the computer into which the tape has been digitised?
Q3. May a member of the academic staff do the same thing, for multi-casting or streaming to fellow academic staff (as distinct from students)?
A. What you can do with a commercially purchased videotape depends on the contract under which the videotape was supplied to you. The Part VA licence has no application where the initial copy is not from a broadcast.
4.2 Do we need to record copying by students for student presentations?
Q. Can a student copy from TV/Radio/Satellite/Cable and use the material in a tutorial?
A. A student is entitled to copy in reliance on the fair dealing provisions contained in s 103C (fair dealing for the purpose of research or study) or s103A (fair dealing for the purpose of criticism or review). If the student is required to make the copy as part of his or her assessment, the purpose is likely to fall within s 103C. If the student has made the copy for the purpose of stimulating a class discussion on the subject matter, the purpose may well fall within s 103A. (These purposes may overlap).
Alternatively, if the student has been directed to make the copy for the university for the purpose of teaching students, the copy can be made in reliance on Part VA.
If the former, the student should retain the tape and it should not be marked (but it should have identification and sources cited). If it is the latter the tape should be marked, and – if a record keeping university – recorded and paid for.
4.3 Can we copy from "unauthorised" tapes?
Q. Staff sometimes provide a personal tape containing copies they have made under the section 103C fair dealing provisions, but which includes a segment or program which they have copied on behalf of the University and which they want to use for teaching purposes.
A. The University can make a further copy of that part of the original copy that is to be used for teaching, and label it. If a record keeping university, the further copy should also be recorded so that it attracts the benefits of the statutory licence and is paid for.
Q. Can the university make a Part VA licensed copy from an original which was made for another legitimate purpose (e.g. fair dealing)?
A. Yes. Once a copy of the original copy is made for the educational purposes of the university, then this copy, of course, must be marked (and, if a record keeping university, recorded and paid for as well). The university is free to return the original copy to the academic without making any record of the original copying. It is not necessary that the original copy be wiped.
Q. Some lecturers have material which was taped in the previous record keeping years (1990-1993). These teachers were not employed by the university then. Can we make further copies?
A. There is no need to make further copies – the tapes can be shown to students at your university. If you chose to make further copies, any new copy should be marked, and, if you are a record keeping university, recorded and paid for.
Q. An academic who is doing a research project has requested me to tape a series of programs. He will not use the copies for the educational purposes of the university, will never show them to a class, and will only use the tapes for the purpose of his own research. My understanding of the licence is that we are only covered to copy for educational purposes. Could you let me know if I am correct?
A. The copying you have described above would not be covered by the Part VA licence, and thus need not be marked, recorded or paid for by the University. The academic may be able to copy the programs under s.103C of the Copyright Act. There have not been any cases deciding the question whether a person can rely on the fair dealing provision where someone else does the copying for them (ie as agent on their behalf). If the university does this it would be advisable to keep a record of the circumstances of the request. Whether the dealing is "fair" will depend on the circumstance of each case.
4.4 How should we record copying for conversions to PAL (Australian) format?
Q. Our audio-visual resource area is often asked to do format conversions, for the University's educational purposes, of material which has either been purchased or copied (possibly off-air or possibly from another source) overseas. In most cases it would be impossible to commercially obtain the video in PAL (Australian) format. Is there any provision for such copying in the Act?
A. If the original tape has been made from a broadcast which went to air overseas, the original taping is not a matter for the Part VA licence as no act involving one of the rights comprised in the copying (e.g. reproduction) takes place in Australia. If the academic then returns to Australia and wishes to make a reproduction (in order to convert to PAL format) then – provided this is for the educational purposes of the university – it is within the Part VA licence. This copy made in Australia should be marked. If you are a record-keeping university it should be recorded and paid for.
There is no exemption or provision in the Part VA scheme that allows you do convert commercially purchased material obtained or copied overseas to PAL (Australian) format for educational purposes. Because the copy is not initially taken from a broadcast, it is not covered by the Part VA licence.
4.5 Can we copy from commercially purchased or hired video tapes?
Q. The AVCC Guidelines only cover copying from broadcasts. Is it ever permissible to make a copy of a purchased or hired sound recording or film or videotape?
A. The Part VA statutory licence only covers copying of material broadcast on radio or television. It does not cover copying of audio-visual material obtained via other channels such as commercial purchase or hire.
There are fair dealing provisions in ss.103A, 103B and 103C of the Copyright Act which allow fair dealing copying of any audio-visual material for the purposes of research, study, criticism, review, or reporting news. A number of factors would be taken into consideration by a court in any individual case to determine whether the dealing was fair. Copying a purchased or hired videotape for use in a classroom setting as a teaching resource would infringe copyright as the copy would not be considered a fair dealing.
Q. If the Library confirms that a commercially produced video-cassette program is no longer available for commercial purchase, are we entitled to make a copy of this program? I assume that it is irrelevant whether the Library currently holds a copy of this program?
A. You cannot make a copy of a commercially purchased video-cassette under Part VA, even if it is no longer available for commercial purchase. You will need to obtain permission from the copyright owner(s). Alternatively, if the copying is for your own research or study, or for criticism or review, you may be able to make the copy in reliance on the fair dealing provisions of the Act. The question whether or not a particular instance of copying falls within one of the fair dealing exceptions will depend on the facts in each case. The relevant factors include the effect of the copying on the potential market for the video and the possibility of obtaining a copy of the video within a reasonable time at an ordinary commercial price. You are correct in assuming that the question whether or not the library holds a copy of the program is irrelevant.
4.6 Can we copy for off-shore students?
Q. We have a staff member who wants to take a copy of a TV broadcast (it will be properly reported and marked) up to Hong Kong to show to students of our university.
A. There is no problem showing the tape to your enrolled students, no matter where they are, if it is for the teaching purposes of your university.
4.7 Can we copy satellite broadcasts?
Q: Can we copy satellite broadcasts, originating from overseas but received and copied in Australia, in reliance on Part VA?
A: Yes.
4.8 Can we copy broadcasts for use in a videoconference?
Q. I have a lecturer who has recorded information from TV on video 7 days ago. She would now like to show this video at a video-conference session. Can she do this without infringing copyright?
A. If the lecturer has copied the broadcast in reliance on Part VA, she can show the video at the video-conference session, provided that this is being done for the educational purposes of the university. The tape must also be marked. If you are a record-keeping university, the lecturer must fill in a record form. The record will be part of the quarterly returns which have to go to Screenrights, and will be paid for.
4.9 Can we copy music – LP records, CDs and audio-tapes?
Q. This question relates to the use of extracts of copyright music in student film productions. These productions are generally short in nature and are produced as an assessment item for a university course. The student productions are not shown publicly, nor are they sold commercially. They may be retained by the students for showing in job interview situations if required. The music extracts could be anything from a couple of minutes to the whole piece. Is it possible for students to use this type of material without having to obtain permission from the copyright owner and, if yes, what conditions would apply to the use and retention of the student production?
A. Section 103C of the Copyright Act allows fair dealing copying of an audio-visual item for the purpose of research or study. For the purposes of s.103C, an audio-visual item includes a sound recording.
Copying of a sound recording done by students for their own research or study (including assessment) would usually be fair dealing. However, the amount of the item copied would be a factor taken into account in determining whether the copying was "fair" in the event that infringement action is brought against the copier.
If the resulting production is to be used for any other purpose you might need a Production Music Licence from AMCOS.
The AMCOS Production Music Licence covers the reproduction or broadcast of Production Music, i.e., background or "mood" music which is composed for the specific purpose of synchronisation or "dubbing" into video, CD-ROM, audio-cassette, broadcast, etc. Production Music is available only from Production Music Library publishers. If a university wishes to have a Production Music Licence it needs to sign the warranty certifying that the university is an educational institution, and departments/schools must submit a record to AMCOS of any use of Production Music within 28 days of its use. Examples of use include "dubbing" on to audio-tape or video made as a teaching tool, on to audio-tape or video made to promote the university's courses or services, and into university-produced television or radio broadcasts of its lectures.
Student productions for class-room use and assessment purposes will generally fall under the fair dealing provision of the Copyright Act and no payment is required for such use of Production Music.
Other licences you can have for reproduction of music include:
The Australasian Performing Right Association (APRA) represents song writers and music publishers and offers licences for live or pre-recorded performance of music in public, other than performances in class. Examples within universities might be live performance or broadcast of music through a PA system in the student union, sports centre or theatre, or having the radio or television on in a public area.
The Phonographic Performance Company of Australia (PPCA) represents recording companies and offers licences for playing sound recordings (cassettes, CDs and music video clips) in public areas. A PPCA licence is not necessary if a sound recording is played at premises where people reside or sleep, or as part of the activities of a non-profit club or organisation which has as its principal objects charity, or the advancement of religion, education or social welfare, or if the music is played from a radio or television rather than a cassette or CD. However in these circumstances an APRA licence is still required.
4.10 Can we copy for students with a hearing disability?
Q. Are there any provisions in the Act which relate to copying audio-visual material into another format for students with a hearing disability?
A. There are no provisions dealing specifically with this sort of copying. However, provided the copying was being done, by or on behalf of the student, to assist them in their research or study, it would probably be a fair dealing to copy an audio-visual item into a special format. This copying would not be done under the Part VA licence and thus should not be reported to Screenrights.
5. Part VA – Audio-Visual Copying and Communication: Questions Which Relate to Record Keeping Universities
5.1 Copying commercials
Q. The documentation indicates that for programs copied off commercial television stations we have to either: not copy commercials, destroy the commercials within the preview period and record the details of each commercial destroyed in Section B of the record form, or retain the commercials and record the details in Section A. We do not have equipment to either not copy or delete the commercials from programs so have no choice but to keep the commercials and record the details. This, of course, is totally impractical. Does this really need to be done and are other universities complying with this requirement?
A. At present there is no other alternative but to either wipe the commercials or keep them and include all details. We are not aware of problems at other universities.
5.2 Late reporting
Q. If a lecturer comes across a tape (e.g. from a student, or another colleague) and the tape was not recorded in the current reporting quarter, then can I add it to this quarter's records and pay for it?
A. If the tape was not recorded in the current quarter, and it has been made for educational purposes, you should report it to Screenrights, but NOT on the current quarter's forms. Report it separately and immediately and apologise for the late return. If the tape was made prior to 1 March 1999, it does not have to be reported.
5.3 Use of ID numbers
Q: Our university does not use ID numbers for copies (tapes) of broadcasts. How should we provide ID numbers to Screenrights?
A. The AVCC recommends that universities which do not use ID numbers use a simple system whereby each completed record form is numbered before it is sent to Screenrights. Any record which needs to be reconciled against the invoice can then be identified by reference to the sheet number. As there are only 8 lines on each form, the line containing the item should be readily identified.
