Copyright and Print Disability :Frequently Asked Questions

Copyright and Print Disability :Frequently Asked Questions

See also: media release on copyright changes (May 2006)

Version 1.2
October 2004

1. Introduction

This list of Frequently Asked Questions (FAQ) has been compiled by a committee established by the Australian Human Rights Commission (the Commission) that included representatives from government, the publishing industry, and copyright administrators.

The purpose of the FAQ is to assemble basic information about how the copyright legislative and administrative regime affects producers and users of accessible-format material (audio, Braille, e-text and large-print) in Australia. It is important to stress that, in some cases, definitive answers are not possible, mainly because of rapidly-changing technologies. Copyright regimes attempt to balance the rights of authors against the rights of end-users. In the case of end-users who have a print disability, there is the added responsibility to ensure that the aims and objects of the Disability Discrimination act (DDA) are promoted as far as possible.

The information contained in this FAQ will be of interest to:

  • People who have a print disability
  • Organisations that produce accessible-format materials for use by people with a print disability;
  • Educational institutions whose client group (potentially) includes people with a print disability.

Although every attempt has been made to ensure that the information provided below is accurate and useful, it should not be seen as a substitute for legal or other professional advice, and we recommend that you seek specialist advice if you want professional assurance that the following information, and your interpretation of it, is appropriate to your particular circumstances.

2. General Information on Copyright in Australia

2.1. What is copyright?

Copyright is a type of property founded on a person's creative skill and labour. It is part of an area of law known as intellectual property. Copyright is designed to prevent the unauthorised use by others of a work, that is, the original form in which an idea or information has been expressed by the creator. Copyright does not protect ideas, concepts or styles, nor is it a tangible thing. It is made up of a bundle of exclusive economic rights that allow the copyright owner to do certain acts with an original work or other copyright subject matter. These rights include the right to copy, publish, communicate to the public (for example, broadcast, make available online or faxing) and publicly perform the copyright material.

The owner of copyright may exercise their exclusive rights themselves, or may give permission through a licence for someone else to exercise those rights. In many cases copyright owners are members of a collecting society that license use of copyrights on behalf of their members and collect and distribute royalties on behalf of members. For example, a large number of authors and publishers have authorised Copyright Agency Limited (CAL) to collect royalties for the reproduction of their works.

Copyright creators also have a number of non-economic rights. These are known as moral rights. In Australia the creator's moral rights are:

  • the right of integrity of authorship;
  • the right of attribution of authorship; and
  • the right against false attribution of authorship.

There is a distinction between the copyright in a work and the physical ownership of the article in which the work is manifested. For example, when you buy a book, a CD or a DVD, you are only buying the article. The copyright in the content of the book, CD or DVD remains the property of the copyright owner or owners. For a book this may be the author of the book or the publisher, in the case of a CD there may be separate copyright ownership for the lyrics, the composition and arrangement of the music and the sound recording of the work. For a film there may be separate copyright owners for the script, the film and the sound recording that is part of the film.

2.2. How long does copyright last?

The length of time copyright lasts depends on a number of factors including the type of material, when it was created and whether it has been published. It can also vary with the law of the particular country. For example, for published works in Australia, copyright lasts for 70 years after the death of the creator. Different terms apply for artistic works and other subject matter.

2.3. What law governs copyright in Australia?

Copyright exists in works and other subject matter in Australia by virtue of the Commonwealth Copyright Act 1968 (the Copyright Act). The Copyright Act divides material into 'works' (literary, dramatic, artistic and musical) and 'other subject matter' (films, sound recordings, broadcasts and the published editions of works).

Also relevant for copyright law in Australia are regulations made under the Copyright Act and court decisions that contain judicial views on the interpretation of words and phrases in the Copyright Act.

The Copyright Act and Regulations are amended from time to time. The latest consolidation of the Copyright Act can be accessed at: http://scaleplus.law.gov.au/cgi-bin/download.pl?/scale/data/pasteact/0/244 . The latest copyright regulations can be accessed at: http://scaleplus.law.gov.au/html/pastereg/browse/TOCCO.htm .

2.4. Are there any international laws affecting copyright?

Australia is a party to a number of international treaties and conventions concerning copyright. Countries that are members of these treaties and conventions give the same rights to copyright owners of other member countries as they do to their own nationals under their own laws. Information about international intellectual property treaties can be accessed at: http://www.austlii.edu.au/au/other/dfat/subjects/Intellectual_Industrial....

2.5. How do I know if a work is subject to copyright?

Copyright exists in an original work automatically when the work is created. There is no system of registration for copyright in Australia. Copyright does not require payment of any fee or for the work to be published.

Many copyright owners put the symbol © on their work followed by the name of the copyright owner and the year of first publication or some other form of copyright notice. While this is good practice, such formal notice is not required for copyright to exist.

2.6. When is copyright infringed?

The copyright in any work or other subject matter is infringed when any act which the copyright owner has the exclusive right to do is done by a person in Australia who is not the copyright owner (or his or her licensee).

For example, when a work is published or reproduced without the copyright owner's permission. It is not necessary for the whole work or subject matter to be reproduced or more than one copy made for infringement of copyright to occur.

Some examples are:

  • Photocopying a work or part of a work;
  • Burning a CD or DVD that contains copyright material; and
  • Downloading copyright material from the Internet and printing it, burning it on to a CD or saving it onto your computer may also be a form of copyright infringement.

Copyright may also be infringed by authorising or facilitating someone else to do an infringing act. It is also an infringement of copyright to import copyright-infringing material into Australia for commercial purposes.

2.7. What happens if I infringe copyright?

If you infringe copyright, a copyright owner is entitled to commence an action in court and may be entitled to various remedies. Generally a copyright owner will bring an action against the infringer to recover damages or an account of profits. Damages are a sum of money intended to compensate the copyright owner for money lost. Additional damages may also be awarded to the copyright owner if the infringement was flagrant. An account of profits is the profit made by the infringer usually by them selling the infringing copies.

In some instances (usually commercial piracy) an infringement may also be a criminal offence; as such a fine or a gaol term may also apply.

2.8. When may I copy a work?

The Copyright Act provides a number of exceptions to the general rules regarding infringement of copyright. These aim to balance the rights of the public (the users of copyright material) against those of copyright owners. Following is a brief description of these exceptions.

a. Permissions

You may seek permission from the copyright owner to copy their works. This may include permission to reproduce a work in an accessible format.

Obtaining permission to copy a work is a matter of negotiation with the copyright owner. A copyright owner is under no legal obligation to allow you to copy their work. They may refuse permission, or if they do grant permission, they may do so subject to conditions. These conditions may include a specified acknowledgment of the source of the work and payment of a fee.

You can obtain permission to copy works in one of two ways:

  • contact the copyright owner directly to seek permission for each specific instance of copying you want to do; or
  • if the work is represented by Copyright Agency Limited (CAL), you may wish to contact CAL as CAL may be able to assist you in gaining permission.

b. Fair dealing

The Copyright Act sets out an exception that permits 'fair dealing' of copyright material for the purposes of:

  • research or study;
  • criticism or review;
  • the reporting of news; or
  • professional legal advice.

Where copying is for the purposes of research or study, the fair dealing provisions of the Copyright Act deem that certain amounts are automatically considered 'fair'. These amounts are 10% of the pages of a book, or 10% of the words if the work is in electronic format, or a single copy of a journal article.

Individuals may copy more than this deemed amount if that copying would meet the test of fairness set out in the Act. This latter interpretation of fairness is the one that people with a print disability will often rely upon.

Whether the use of copyright material constitutes fair dealing is a matter to be determined on the facts of each case. In the case of reproduction for research or study the factors include:

  • the purpose and character of the use;
  • the nature of the work or other subject matter; and
  • the amount and substantiality of the portion copied.

The copyright owner is not paid for uses under the fair dealing provisions.

c. Statutory licences

There are special rules in the Copyright Act for educational institutions and other institutions assisting people with a print disability. These provisions are known informally as the statutory licences.

The statutory licences grant to educational institutions and institutions assisting the disable permission to copy and communicate copyright works for the purposes of their institutions. However, the institutions must pay for these uses, and in Australia the statutory licences are managed by Copyright Agency Limited (CAL).

For more information about the specific operation of the statutory licences, refer to Frequently asked questions about copyright for institutions assisting people with a print disability.

3. Questions about copyright for individuals with a print disability and institutions that provide material in accessible formats.

The questions and answers in this section assume familiarity with the material contained in Section 2 of this document. Australia.

3.1. How does the Copyright Act define print disability?

Under the Act, a person with a print disability is:

  • a person without sight; or
  • a person whose sight is severely impaired; or
  • a person unable to hold or manipulate books or to focus or move his or her
    eyes; or
  • a person with a perceptual disability.

3.2. What is meant by an 'institution assisting persons with a print disability'?

An institution assisting persons with a print disability is defined in the Copyright Act as an 'educational institution' (which is also defined in that Act) or any institution that has as one of its principle functions the provision of literary or dramatic works to persons with a print disability, and which is subject to a declaration by the Attorney-General under subsection 10A(l)(c) of the Copyright Act.

3.3. How can an organisation become an 'institution assisting persons with a print disability' and take advantage of the statutory licence?

An 'educational institution', which is defined very broadly under the Copyright Act, automatically falls within the scope of the statutory licence. This covers primary, secondary and tertiary levels of education, professional and vocational training, adult, continuing, correspondence and external education.

Other organisations, including teaching hospitals and teacher educations centres, must be subject to a declaration by the Federal Attorney-General under subsection 10A(l)(c) of the Copyright Act. An organisation wanting to be considered for such a declaration should apply to the Attorney-General.

3.4. Exemptions

3.4.1. What exceptions to infringement under the Copyright Act are relevant to people with a print disability?

There are two main exceptions to infringement that allow people with a print disability to legally gain access to copyright material.

The first category of exemption applies to individuals: the Copyright Act provides a number of defences to infringement for certain fair dealings by individuals. More detail about this is given below.

The second is for institutions, including educational institutions, that assist people with a print disability by providing material in accessible formats. More detail in relation to the statutory licence is given below at question 5 below.

3.4.2. What are the limitations on exemptions to the Copyright Act for people with a print disability and institutions assisting them?

There are different limits on what may be copied and communicated by individuals with print disabilities, and by institutions assisting people with a print disability under the special provisions in the Copyright Act. In particular, institutions are not entitled to rely on these provisions where copies of the relevant versions are already commercially available.

3.4.3. Can individuals who have a print disability reproduce a work in an accessible format?

Individuals may reproduce works in an accessible format for the purposes of research or study under the 'fair dealing' exception (for more detail, see Section 2, General information on copyright).

The application of the statutory licence is restricted to institutions that assist people with a print disability. For this reason, individuals who wish to obtain a work in an accessible format, who are not accessing the work for any of the fair dealing purposes, should contact one of these institutions rather than reproducing the work themselves. An institution operating under the statutory licence could authorise the individual to reproduce a work on its behalf providing the requirements of the statutory licence are satisfied.

3.5. Statutory Licence Exemption

3.5.1. How does the Statutory Licence exemption work?

The Copyright Act permits institutions that assist people with a print disability to make reproductions and communications of published literary and dramatic works for use by people with a print disability under a statutory licence set out in the Copyright Act. The rules are different for individuals.

Statutory licences give the copyright owner a right to be paid 'equitable remuneration' through an approved collecting society. Copyright owners have no discretion in deciding whether or not to issue licences to these institutions assisting people with a print disability. In this sense the licence is compulsory.

3.5.2. How do I know if the special rules for people with a print disability apply to my organisation?

They will apply if you organisation assists 'person[s] with a print disability' as defined in the Copyright Act.

A person with a print disability is:

  • a person without sight; or
  • a person whose sight is severely impaired; or
  • a person unable to hold or manipulate books or to focus or move his or her
    eyes; or
  • a person with a perceptual disability.

3.5.3. How do institutions take advantage of the Statutory Licence provisions?

To take advantage of the statutory licence the institution needs to be licensed by the Copyright Agency Limited (CAL), the collecting society approved by the Attorney-General to administer the statutory licence for institutions assisting people with a print disability.

3.5.4. Are all forms of copyright material covered by the statutory licence?

No. The statutory licence covers literary and dramatic works only.

Literary and dramatic works cover most materials that are reduced to writing or some other material form by a creator. Such works may be in electronic or hardcopy form and may include letters, e-mails, articles, novels, poetry, song lyrics, timetables, databases and computer programs.

Importantly, the statutory licence does not cover artistic or musical works. In particular, artistic works may include drawings, photographs, diagrams and maps, as well as paintings, sculptures, sketches, blueprints, plans, and buildings or models of buildings.

3.5.5. Under what circumstances can an institution assisting persons with a print disability reproduce a work?

The institution needs to be licensed (see CAL at www.copyright.com.au); the work can only be used to provide assistance to a person with a print disability; and the institution is required to make a reasonable investigation to identify that the work is not available within a reasonable period of time and at an ordinary commercial price.

3.5.6. Does the statutory licence permit reproduction of a work in an accessible format?

Yes. The statutory licence permits the making of reproductions or communications of literary or dramatic works in any of five specified formats, including:

  • sound recordings - 2 track and 4 track etc;
  • Braille versions;
  • large print versions;
  • photographic versions; and
  • electronic versions - HTML, ASCII, XML etc.

The licence also provides for the making of intermediate reproductions, such as where a copy is made from a master, where this is done for the purpose of assisting a person with a print disability.

A statutory licence will not apply where there have already been recordings or Braille etc versions of the literary or dramatic work published, unless the person making the reproductions on behalf of the institution assisting persons with a print disability is satisfied, after reasonable investigation, that no new record or copy can be obtained within a reasonable time at an ordinary commercial price.

3.5.7. Can an institution assisting persons with a print disability create a master of the work?

Yes. A licensed institution can create a master of the work in one of the five accessible formats. It has to be created for the purpose of assisting persons with a print disability.

The institution does not need to check commercial availability requirements (explained in Question 4) when creating a master but must do so when a subsequent copy or communication is made from the Master. Additionally the Master has to be reported to CAL within three months.

3.5.8. Can an institution assisting persons with a print disability get someone else to create a master on its behalf (for example, a student, an individual or another organisation)?

Yes. A licensed institution can authorise anyone or any body to create a master of the work into one of the five accessible formats on its behalf. It has to be created for the licensed institution's purpose of assisting persons with a print disability.

Authorisation can be an instruction prior to creation. It is recommended that the licensed institution provide written authorisation.

3.5.9. Is there a limit to the number of subsequent copies that can be made from a Master?

No, but each copy must be made to provide assistance to a person with a print disability.

3.5.10. Can an institution assisting persons with a print disability charge for copies made under the statutory licence?

Yes, but only on a cost recovery basis. There must be no intention to make a profit from works copied under print disability provisions.

3.5.11. Can an institution assisting persons with a print disability make works available on an intranet site?

Yes, but each time a work is accessed it must not be available (in that format) within a reasonable time at an ordinary commercial price; and must be for the assistance of a person with a print disability.

3.5.12. Can copyright owners grant permission to institutions to reproduce works in an accessible format outside the statutory licence scheme?

Yes. Section 135ZZF of the Copyright Act provides that, notwithstanding the provision of the statutory licence, copyright owners are free to grant voluntary licences which permit the reproduction of literary or dramatic works.

3.6. Copy protection and Circumvention Devices

3.6.1. What is a 'technological protection measure'?

Copyright owners increasingly rely on 'technological protection measures' (TPMs) to control access to, and use of, their material. Such measures include digital access codes, encryption and copy-protection.

The Copyright Act defines a technological protection measure as: a device or product, or a component incorporated into a process, that is designed, in the ordinary course of its operation, to prevent or inhibit the infringement of copyright in a work or other subject-matter by either or both of the following means:

(a) by ensuring that access to the work or other subject matter is available solely by use of an access code or process (including decryption, unscrambling or other transformation of the work or other subject -matter) with the authority of the owner or exclusive licensee of the copyright; and/or
(b) through a copy control mechanism.

3.6.2. What is a circumvention device?

A circumvention device is a device (including software) to circumvent a TPM.

3.6.3. When can a circumvention device be used to circumvent a TPM?

Institutions assisting people with a print disability may be able to purchase and use software that can "break" into material protected by encryption or other TPMs without any breach of the Copyright Act. Note, however, that such institutions would not be entitled to do so if electronic versions of the work are already available.

Fair dealing by an individual for research or study is not a permitted purpose. This means that it is not legal for an individual to circumvent a TPM.

3.6.4. Is an Adobe Acrobat PDF a TPM?

The answer to this question will depend on the specific facts of each case. While PDF software might often be used to enable access by users of many different kinds of hardware, and therefore be promoting broad access, it could also be used potentially to block certain access. Answering this question will determine whether it is being used as a TPM.

If it is being used as a TPM, circumventing its operation will amount to using a circumvention device, and any copying or communication of the material accessed could be found to be an infringement of copyright.

4. For more information

The information contained in these frequently asked questions and answers has been drafted collaboratively by:

  • Commonwealth Attorney-General's Department,
  • Australian Copyright Council,
  • National Library of Australia,
  • Australasian Performing Right Association/Australasian Mechanical Copyright Owners Society,
  • Australian Human Rights Commission,
  • Round Table on Information Access for People with Print Disabilities Inc.,
  • National Information and Library Service (NILS),
  • Australian Vice-Chancellors' Committee (AVCC),
  • Blind Citizens Australia (BCA),
  • Australian Publishers Association,
  • Pearson Education Australia,
  • NSW Department of Education and Training,
  • Copyright Agency Limited (CAL).

Any of these organizations can provide you with more information about copyright.