Copyright and Digital Content

and Libraries, Archives and Cultural Institutions

Professor Michael Fraser Communications Law Centre University of Technology, Sydney
March 2012
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Property
Real Property

Personal Property

Intellectual Property
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Intellectual Property
Protects works of the mind
Protects investment of creative effort Protects economic investment

IP Statutes
Constitution, Section 51 (xviii) Copyright Act, 1968 (Cth) Designs Act, 2003 (Cth) Circuit Layouts Act, 1989 (Cth) Patents Act, 1990 (Cth) Trade Marks Act,1995 (Cth) Plant Breeders Rights Act 1994 (Cth)
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Works: literary works, dramatic works, musical works, artistic works, Rights: Reproduce, publish, perform communicate a work to the public, make an adaptation Subject Matter other than works: sound recordings, cinematograph films, sound and television broadcasts, published editions

Exclusive Rights of Copyright Owners

Common Law
Confidentiality

Passing off

Trade Practices Act

Misleading or deceptive conduct False representations

Australia
Cultural productions Educational resources Scientific, technical and medical works Online educational , library and legal services Entertainment and games
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Books in Australia
Population under 20 million Bought 80 million new books (2003 2004) Valued at over Aus $1,406.5m 14,258 local titles published (2007)

Nation to Nation
Culture Learning Trade Prosperity Amity

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The Information Society

Access to Technology Content

Copyright Law
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Technology
1,407,724,920 people online: 21.1 % of the world

Growing 290.0 % since 2000

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Content
Free Content AND

Pay for Content

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Copyright
Encourage creativity and Diversity

Intellectual property market

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Copyright

A foundation of freedom of expression.

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Copyright and Author Income

Advertising
Employed Grants and prizes Copyright
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Copyright
Gives author choice Makes economic value

Makes a market to reward creativity

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Online Content and Copyright

Global
Virtual supply chain Access is a rights transaction Models must meet consumer demand
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Web Ecology
A question for consumers:
Something for nothing? or Reap as you sow?

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National Copyright
Berne Convention TRIPS Agreement (GATT)

WIPO Copyright Treaty (1996)

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Copyright and National Interest

In the national interest? OR

Against the national interest?

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National Copyright
Weak copyright protection =

Less access to worlds best

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National Copyright

Weak copyright harms local authors and publishers most

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National Copyright

Strong copyright = Flourishing national creative industries

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National Copyright
Strong copyright = National creative industries = Exports to foreign markets
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Issues
CONTENT THAT IS PUT ON THE WEB Peer to peer Secondary liability, (liability for isps) User generated content.

Changes
20% of the music market is legitimate sales 4% of the film market is legitimate sales Books and journals are going online News is going online 80 regional newspapers in UK closed in the last year Will San Francisco be the first city to have no daily newspaper?

 4.7 million Australians accessed online content illegally Piracy cost the core content industries including music, film, television, software and video games - $900 million The impact on Commonwealth revenue was $190 million There were 8000 fewer jobs in the core content industries as a result of piracy
Australian Content Industry Group Study by Sphere Analysis reported The Sun-Herald Sunday March 6, 2011

2010

Changes
40 billion file shares a year are illegal uses. 95% of the exchanges that occurred in music are illegal BUT Global book market 2007 =$127.5 Mill (up 4.6%) 2012 forecast $160.7 bill (up 26 % from 2007)

Culture
The public is sympathetic to peer to peer uses and

The public is bored with copyright.

How do we finance culture in the digital environment?

Content
Newspaper publishers are suffering Aggregators of news on the internet are not supporting the cost of news collecting and reporting by journalists. More work is needed on automated rights clearance.

Google case
Class settlement rejected in court. Not fair. Google offered US$125 million A private copyright register is being established A major asset, online books, is in private hands. The control of access, the cost of access can change . At stake is the survival of copyright.

Copyright in Australia
The Economic Contribution of Copyright Industries Employed 8% of the workforce Generated $97.7 billion i.e. 10.3% of GDP Generated $6.973 billion in exports i.e. 4.1% of exports Growing at 4.7% pa compared to 3.6% for GDP But net importer. 2006/07 trade deficit of $2 bill.

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Copyright in Australia

Copyright is controversial.

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Universal Declaration of Human Rights (1948)

Article 27 (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
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INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS(1966)

Article 15 1. The States Parties to the present Covenant recognize the right of everyone: (a) To take part in cultural life; (b) To enjoy the benefits of scientific progress and its applications; (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture. 3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity. 4. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and cooperation in the scientific and cultural fields.
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Treaties andConventions
Berne Convention for the Protection of Literary and Artistic Works Geneva Phonograms Convention International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations

World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights

WIPO Copyright Treaty WIPO Performances and Phonograms Treaty Universal Copyright Convention Australia-US Free Trade Agreement Thailand-Australia Free Trade Agreement

Singapore-Australia Free Trade Agreement

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The Copyright Act

Works: literary works; dramatic works; musical works; and artistic works.
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Subject matter other than works

Sound recordings (the recording itself) Cinematograph films Sound and television broadcasts
Published editions of works
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Performers Protection
Performers rights in their live performances
Drama Music Readings Dance Circus Folklore (Not sport)
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Performers Rights
to prevent others from:
Recording or filming their live performances Communicating to the public their live performances directly from the performance; Reproducing, communicating or playing in public unauthorized recordings of their performances; Recording an unauthorised broadcast or other communication of their performance; Using any recording of their performance in the soundtrack of a film.

Designs and Circuit Layouts

Designs Act gives specific protection Circuit layouts Act gives specific protection

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Requirements for copyright protection

Material form Originality Term. For works, seventy years after death of the author Then work enters the public domain

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Scope of Copyright
There is no copyright in facts
There is no copyright in ideas

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Scope of Copyright
Copyright only protects against copying a substantial part. Substantial is qualitative. Compilations and collections can be protected

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Copyright formal requirements?

There are no formal requirements for copyright There is no registration of copyright The author is the first owner of copyright automatically
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Employees
Employers own the copyright

Employed journalists retain copyright for books and for hard copying.

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Commissioned works
Commissioned author owns copyright
Except: commissioned photographer for private domestic purpose or artist for a portrait
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Folklore

Folklore which is not in a material form is not protected

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Copyright Owner Exclusive Rights

i.e. Copyright is a bundle of rights. Copyright is an economic right.

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Dealing with your Copyright

Copyright is property.
Sell (assign) some or all of your copyright rights in writing. Give permisssion (licence) to other(s) to use some or all of your copyright rights on agreed terms and conditions.

Bequeath copyrights in will.

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Copyright Owner Exclusive Rights

(i) reproduce the work in a material form; (ii) publish the work; (iii) perform the work in public; (iv) communicate the work to the public; (vi) make an adaptation of the work (for example a translation); (vii) do any of (i)-(iv) in relation to an adaptation
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Exceptions to Copyright
Fair dealing exceptions; Educational use exceptions; Exceptions for libraries, archives and key cultural institutions; Special exceptions for archives and libraries.
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Fair Dealing Exceptions

Research or study Criticism or review Reporting news Parody or satire Legal proceedings or professional advice by a legal practitioner
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Fair Dealing for Research and Study

Deemed to be fair if you use only a reasonable portion a single copy of a journal article; one chapter or 10% of a book of 10 or more pages; 10% of the words in material that is in electronic form. The reasonable portion test is in addition to the normal fair dealing exception

Educational Use Exceptions

Communicating a work in the classroom, in the course of instruction Proxy web caching by educational institutions

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Exceptions for Libraries, Archives and Key Cultural Institutions.

A reasonable portion of the work, or More than a reasonable portion if the work is not commercially available. The librarian may charge the client a cost recovery fee for this service, but There is no copyright payment to the rightsowners.
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Exceptions for Libraries, Archives and Key Cultural Institutions (cont)

Copying for Clients Copying for other Libraries Copying for preservation and replacement The library may make a work acquired in electronic form available to users online in the library

Possible Qualifications
These exceptions apply to works that are in the library collection. If the library has acquired material under a licence agreement the copyright exceptions may be restricted or excluded by the terms of the contract

Special Exceptions for Education Institutions and Libraries

Provided that: the circumstances of the use amount to a special case; and the use does not conflict with a normal exploitation of the work or other subject-matter; and the use does not unreasonably prejudice the legitimate interests of the owner of the copyright.
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Format Shifting
For private and domestic use of works in Books, newspapers, periodicals Photographs Films Music
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Time Shifting
Free exception for copying for: time shifting broadcasts for private and domestic use

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Parallel Importation
30/90 Day Rule Provide one copy for a customer; Provide one or more copies for a nonprofit library; Satisfy an order for a book which the copyright owner or licensee will not fill for 90 days.
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Parallel Importation Restrictions

Productivity Commission Review Discussion Draft (20 March 2009) PIR protection should only apply for 12 months from the date of first publication of a book in Australia (while retaining the 30 day release rule) the 90 day resupply rule should be abolished Not accepted by government
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Copyright Infringement
Copyright use of a substantial part without the copyright owners permission
Substantial is qualitative

Authorising an infringement is an infringement

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Substantial Part
EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited [2011] FCAFC 47(31 March 2011)

The principal question was whether Down Under involved a reproduction of a substantial part of Kookaburra. The song Down Under infringed copyright in the song Kookaburra. % of royalties was payable by the record company EMI and composers of Down Under to the owner of the copyright in Kookaburra, being Larrikin

ISPs
Not liable for infringement if they take down others infringing material when properly notified and Terminate the accounts of repeat infringers and Accommodate digital rights management or follow an industry code.
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iiNet Case
Full Federal Court case has important consequences for ISPs and internet users Seven major movie studios and the Seven Network sued iiNet for allowing its users to download pirated movies and TV shows after studios notified iiNet of the illegal filesharing iiNet not responsible for authorising infringements Appeal to High Court
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TV Now Appeal
Optus records and then streams free to air broadcasts to its customers via its cloud without permission from broadcasters Within scope of the Copyright Act section 111 exception Federal Court decided Optus TV Now service legal

TV Now Appeal

(2)

111 Recording broadcasts for replaying at more convenient timefor private and domestic use does not infringe copyright Federal Court decided Optus TV Now service legal Appeal 14.03.12

Remedies for Infringement

Court may order: Payment of damages or account of profits Injunctions Delivery up Anton Piller orders to enter and get evidence Seizure by Australian customs
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Compulsory Licence Schemes

For copying and communication by: Education Institutions Institutions assisting the disabled

Government
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Education
10% or one chapter; An item in an anthology of up to 15 pages; One article from a journal publication. More than one article if they relate to the same subject matter; The whole of an artistic work that accompanies the copied text; The whole of a work if it cannot be obtained within a reasonable time at an ordinary commercial price.
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Government

May use copyright material in any way for the services of the government

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Other Compulsory Licenses

Sound recording for purpose of broadcast Recording musical works previously recorded Recording musical works previously recorded Retransmission of free to air broadcasts Copying and communication of broadcasts by educational institutions
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Additional Compulsory Licenses

Retransmission of free to air broadcasts Copying and communication of broadcasts by educational institutions
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Technical Protection Measures

Copyright owners use technical protection measures to control access and use of their content TPM: Encryption Watermarking Locks

TPM Enforcement
There are criminal and civil sanctions to deal with a person who makes, distributes or deals commercially with devices which circumvent technological copyright protection measures does an act that results in the circumvention of the technological protection measure S116A

Exceptions
Permission from the copyright owner, or if circumvention is for: achieving interoperability,analyzing flaws in the encryption,security,privacy, law enforcement, national security, a statutory function of governments; or allowing libraries, archives and educational institutions to make a decision whether to buy the copyright material if the act does not infringe the copyright

Digital Rights Management (DRM)

Metadata for identification management and monitoring of the content and the terms and conditions on which the content may be used, including enabling e-commerce transactions for access

DRM Enforcement
There are civil and criminal actions against removing electronic rights information importing, distributing or communicating material in which the electronic rights information has been removed or altered
S116B, S116C

Plagiarism
An ethical, academic and professional concept. Do not plagiarise. MEAA Code of Ethics item 10. May infringe copyright. May breach authors moral rights.
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Creators Moral Rights

Be attributed as the creator of their work; Take action if their work is falsely attributed or is altered but attributed as if it were not altered; and Take action if their work is distorted or treated in a way that is prejudicial to their honour or reputation.
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Remedies for Breach of Moral Rights

Court may order: Damages Injunctions Declarations Public apologies Removal of distortion, prejudicial treatment or false attribution

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Art Resale Rights

Entitles artists to a 5% royalty each time their work is resold. Such schemes are currently operating throughout the European Union. Excludes the first resale after the legislation comes into force. (controversial slow start)

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Copyright Management Organisations

Australian Mechanical Copyright Owners Society (AMCOS) Australasian Performing Right Association (APRA) Phonographic Performance Company of Australia (PPCA) Visual Arts Collecting Society (VISCOPY) Audio Visual Copyright Society (Screenrights) Copyright Agency Limited (CAL)

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Copyright Agency Limited

MEMBERS
11,000 Australian members + Most foreign authors and publishers for Australia
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Copying and Communication Licences

Statutory Licences Education institutions Institutions for disabled Government Contractual Licences Press clipping agencies, Document delivery services, Local councils, Associations and Other entities
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Governance
Not for profit company
Owned by the members (authors and publishers)

Approved by Australian Government to administer the statutory licences

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Role
Licenses Monitors Collects the licence fees Distributes the fees Advocates and lobbies Takes strategic test cases Education and advice
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Results 2006 -2007

Licence Revenue
Distributed

$106 millions+
$134 millions+

Distributed since 1989 $500 millions+ Costs 15% approx.

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International Federation of Reproduction Rights Organisations (IFRRO)

INGO 114 members: - 65 RROs - 49 associations
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IFRRO Member RROs

ASIA PACIFIC REGION
Australia Hong Kong India Japan Korea Indonesia Malaysia New Zealand Philippines Singapore Taiwan R.O.C.

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RROs Worldwide (2007)

Distributed US$ 1.3 billion to rightsholders

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IFRRO
Increase Copyright Awareness Increase Copyright Compliance Combat Piracy Foster Establishment of RROs Facilitate Bilateral Contacts Facilitate Bilateral Agreements
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The International Confederation of Societies of Authors and Composers (CISAC)

Membership of 222 author societies from 118 countries Represents creators of music, drama, audio visual, visual arts and graphics In 2005 CISAC member organisations collected more than $13.15 billion Increases copyright awareness, compliance and combats piracy
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National and International

Copyright is Infrastructure for Knowledge Economy
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Knowledge Economy
Copyright law New business models Standard identifiers and metadata RROs to manage digital rights Consumer support
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Resources
Cth Attorney Generals Department www.ag.gov.au Australian Copyright Council www.copyright.org.au CAL www.copyright.com.au Arts Law Centre of Australia www.artslaw.com.au MEAA www.alliance.org.au IP Australia www.ipaustralia.gov.au Creative Commons www.creativecommons.org
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Further Questions?
Professor Michael Fraser Communications Law Centre +61 2 9514 9941 michael.fraser@uts.edu.au

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