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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/…
. 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_Industria….

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.