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The Australian copyright framework, under the Copyright Act 1968 (Cth) is intended to facilitate access to content, while enabling rightsholders to fairly manage how their content is used. Copyright can be a complex and nuanced area for in-house counsel – ACC members are encouraged to use the following resources to gain clarity on best practices when it comes to copyright compliance.

Copyright Law in context

Under s36 of the Copyright Act 1968 (Cth), copyright infringement occurs where someone who is not the rightsholder, exercises any of the exclusive rights (contained in s31) of the copyright holder without permission or a licence. Organisations may be held vicariously liable for their employees’ or contractors’ copyright infringement.

The only instance in which a permission (commonly referred to as a ‘licence’) is not required is where a fair dealing exception applies. Unlike the American concept of “fair use”, “fair dealing” exceptions in Australian copyright law allow the use of copyright material for a narrowly defined set of purposes:

  • research or study
  • criticism or review
  • parody or satire
  • reporting the news
  • access by a person with a disability or an organisation assisting a person with a disability
  • giving professional advice by a lawyer, patent attorney or trademarks attorney.

In considering whether the dealing with the work is fair, the courts will look at whether an objective person would consider:

  • that the use of the work is genuinely for one of the fair dealing exceptions in the act, and
  • the use of the work is fair in that context.

Fairness Considerations
Considerations would include whether there was a negative financial impact upon the rightsholder, including whether a copyright licence was easily available. 

For organisations, this means regular day-to-day activities, such as the below, would usually require either a copyright licence or permission from the rightsholder:

  • downloading as a PDF or digital file
  • forwarding media clips received from a media monitoring organisation to an external party
  • saving media and creative works received from an external agency or stakeholder 
  • saving copyright works on a server or hard drive
  • posting an article on an intranet, secure extranet or public website
  • providing a copy to a regulatory body or adviser
  • copying and pasting an image, graph or table into a presentation or report
  • copying and pasting text from a book or research paper into a report
  • emailing an article to a colleague
  • posting content to a social media channel
  • scanning from a hard copy making a hardcopy of a work either by printing or photocopying

Copyright Governance:

There are a number of misconceptions about the legal use of copyright content in organisations, including the common misconception that purchasing a copy of a work or subscribing to a work entitles the purchaser to also copy and communicate that work. This is very rarely the case. 

For further guidance, Copyright Agency has prepared useful myth-busting tools here and here.

You can also download Copyright Agency’s Copyright Governance: A Risk and Compliance Guide to understand more about how licensing supports your organisation’s compliance and governance if staff capture, store and reuse copies of published information.

Collective licensing

It can be an arduous and complex process for organisations to seek permissions on a case-by-case basis. In-house counsel may wish to consider a ‘collective licence’, which can be more cost and time efficient. 

Collective licensing is designed to enable organisations to obtain a consistent set of reproduction, communication and digital storage rights for multiple works under a single licence. Rights are granted to a Collective Management Organisation (CMO)i, which is ‘a national organisation licensed to handle certain types of permissions on behalf of publishers or other rights owners. CMOs can provide you with permission in the form of a license to make copies of material in several formats such as printing, photocopying, scanning, digital copying, and electronic storage.ii

These licences cover off internal use and storage of published content, together with workflow requirements where works may need to be shared externally, such as in regulatory communications or in fulfilling medical information requests.

Copyright Agency is the Australian CMO for text/image works – it has been federally appointed to administer statutory licences for government and education sectors for over 40 years, and has over 20 years’ experience with collective licensing for the business sector.

If your organisation does not hold a collective licence or you are unsure if they do, we invite you to consult with Copyright Agency. We can provide information on where a licence is required and a cost-effective collective licence covering nearly all publications from around the world that will help make your workflow copyright compliant.

ACC Australia member Copyright Licence discount offer

Copyright Agency is an ACC Australia corporate partner. As a part of the partnership ACC Australia members are entitled to a 10% discount on the annual fees of any new copyright licence for the life of the licence.

Copyright Agency

Useful links:

Copyright Agency: https://www.copyright.com.au/licences-permission/commercial-licences/

Australian Copyright Council www.copyright.org.au

Federal Department of Infrastructure, Transport, Regional Development and Communications: https://www.infrastructure.gov.au/media-communications-arts/copyright/copyright-users

Australian Business Licence and Information Service (ABLIS): https://ablis.business.gov.au/service/ag/copyright-access-licence/216

Arts Law Centre of Australia: https://www.artslaw.com.au/information-sheet/copyright/

International Publishers Association https://www.internationalpublishers.org/images/aa-content/ipa-reports/Licensing_practices_2019-20/Olav_Stokkmo_-_The_Role_of_Collective_Licensing.pdf

 

[i] Also referred to as Reproduction Rights Organisation (RRO)

[ii] See “Can I obtain permission from a Reproduction Rights Organization (RRO)”: https://www.elsevier.com/about/policies/copyright/permissions#

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