Copyright in library collections

What is copyright?

Copyright is a legal right that gives copyright owners the right to control certain activities with their works. These activities include copying and re-use, such as publication, performance, adaptation and communicating the work to the public (for example, by making it available online).

If you are not the owner of copyright, you risk infringing copyright if you perform one of these exclusive acts without obtaining the permission of the copyright owner. You must consider copyright when you obtain or create copies of items from the Library's collection.

The duration of copyright in published materials is generally 70 years from the death of the creator, or (for sound recordings and films) from the date of publication. For unpublished materials, such as the Library’s archival or manuscript collections, the duration may be even longer. From 1 January 2019 new copyright will apply to unpublished works based on whether or not they have been made public (before or after that date). For detailed information about these changes see the copyright duration fact sheets from the Department of Communications and the Arts.

When the duration of copyright ends, a work is referred to as ‘out of copyright’ or ‘in the public domain’.

Why do we have a copyright system?

There are a number of explanations for why we have a copyright system, including that it:

• provides an important incentive for the creation and distribution of intellectual and creative works; and
• rewards creators for their efforts.

What types of works does copyright cover?

Copyright applies to many different types of works in library collections, including:

• Architectural plans
• Art works
• Books, newspapers and periodicals
• Broadcasts (both sound and television)
• Choreographic shows
• Compilations and databases
• Computer games
• Design drawings and plans
• Diaries and letters
• Films
• Manuscripts
• Maps
• Musical scores
• Photographs
• Plays
• Published editions
• Screenplays and scripts
• Software
• Song lyrics
• Sound recordings
• Websites

In Australia, copyright applies to both published and unpublished works, and protection is automatic as long as certain basic requirements are met. That is, there is no copyright registration process and an individual does not need to claim copyright by including the copyright symbol and their name on a work (such as © Author Name 2015). Copyright is not dependent on aesthetic or literary merit and can protect materials that are utilitarian, short or mundane.

Which copyright law applies?

In Australia, copyright law, including all amendments, is set out in the Copyright Act 1968 (Commonwealth). Australian copyright law applies to any copying or re-use performed in Australia, even if the owner of copyright in the work you are copying is a citizen of another country. There are reciprocal arrangements between countries which mean that copyright in foreign works is also recognised in Australia (and vice versa). If you are not located in Australia and you are copying digitised content from the Library's web site, you must follow the copyright law of the country in which you reside.

Who owns copyright?

The default rule in the Copyright Act is that copyright in a work is owned by its creator or maker. However, this basic position can be changed in various ways. Copyright owners can transfer their copyright, for example where an author assigns copyright to a publisher. If a creator made the work as part of their job, the employer will generally own copyright. Similarly, for some commissioned items, the commissioner is deemed to be the copyright owner. If a copyright owner dies, their copyright forms part of their estate and can be bequeathed by will. If no specific provision is made in a will for copyright it forms part of the residuary estate. The relevant government owns copyright in works made by, or under the direction or control of, an Australian federal or state government agency.

Because copyright ownership is distinct from physical ownership, the Library does not own copyright in most of the material in its collections. Even though the Library may own a manuscript or a drawing, for example, it does not necessarily have the right to provide you with a copy or authorise its re-use.

In some cases the copyright owner will assign copyright to the Library at the time of donation or a specified later date. In other cases the copyright owner will grant an open licence to their work, such as a Creative Commons licence which specifies how the work may be used without seeking the owner’s permission.

It is possible for more than one copyright to exist in a single item. For example in a music CD, the composer may own copyright in the music, the lyricist in the words, a photographer in a photo used on the cover, and a production company in the way the music was recorded. It is also possible to have more than one owner of a single copyright, for instance when two or more individuals act as co-authors of a book.

The Library can sometimes provide information that may help you contact a copyright owner to arrange permissions to copy and use material. 

What are moral rights?

Australian copyright law sets out a separate and additional set of rights called moral rights. Moral rights give certain creators and performers the right:

• to have their authorship or performership attributed to them;
• not to have their work falsely attributed to someone else; and
• not to have their work treated in a derogatory way.

Moral rights should always be considered if you are re-using and altering works (for example, through editing, cropping or colourising), and you should ensure that attributions are clear and reasonably prominent.

Moral rights generally last until the copyright in the work expires.

Moral rights cannot be transferred or waived, although creators can provide written consents to acts that would otherwise infringe their moral rights. Furthermore, there are defences to moral rights infringement, for instance, where the infringing act is reasonable in all the circumstances.

How long does copyright last?

Calculating the copyright term for a given work can be complicated because copyright legislation has changed over time. For detailed information refer to the copyright duration fact sheet from the Department of Communications and the Arts, or the Australia Copyright Council's copyright duration information.

Table 1 outlines some of the key rules contained in the Copyright Act regarding the term of copyright.

Under current law, for literary, dramatic and musical works that were published during the lifetime of the author, copyright lasts for 70 years from the end of the year in which the author died. For published sound recordings and films, the duration of copyright is 70 years from the end of the year in which the recording or film was published. Where such items remain unpublished, the copyright term may not commence until publication takes place. In contrast, for artistic works, copyright lasts for the life of the artist plus 70 years, and publication status is irrelevant. On 1 January 2019, changes to Australia's copyright duration laws will see new standard terms of copyright protection for copyright materials.

The 70-year copyright terms above came into effect on 1 January 2005 when the Australia-US Free Trade Agreement (AUSFTA) amendments were made to the Copyright Act. The previous terms were generally 50 years and the 2005 changes were not applied retrospectively or to government publications.

So to calculate the copyright status of older works, find out if the period of copyright protection had expired by 1 January 2005. For example, if an author died prior to 1 January 1955, works published during his or her lifetime are now out of copyright because the old 50 year period of copyright protection had elapsed by 1 January 2005. Once copyright expires, there are no longer any copyright-related restrictions on its copying or re-use. This is sometimes referred to as being in the public domain.  The Library may restrict certain uses of public domain materials for other reasons, such as donor restrictions, Indigenous cultural concerns or fragility.

Table 1: How long does copyright last?

This table outlines some of the key rules contained in the Commonwealth Copyright Act 1968 regarding the term of copyright.

Determine whether a copy right permission is necessary

It is your responsibility to determine whether the work you want to copy or re-use requires copyright permission. Permission from the copyright owner may be necessary where:

• the material you wish to copy is protected by copyright;
• your copying is not insubstantial; and
• your copying does not fall within an exception in the Copyright Act.

To determine the copyright status of the work you want to copy, we suggest that you first try searching for the work in the State Library of Western Australia's catalogue to see if there is a rights statement for that specific work. Alternatively, you could search for the work on the National Library of Australia's Trove and follow the 'check copyright status' link. Please note, however, that the copyright status information on Trove is a computer-generated estimate and is not legal advice.

When you are determining whether permission is required, do not forget that multiple copyrights can subsist in the same item. This includes, for instance, where a book includes photographs or illustrations that have separate copyright from the text, potentially requiring you to obtain more than one permission.

If in doubt, it may be best to assume that a work is in copyright and that you need to get permission.

Get permission

If permission is required, you will need to find the copyright owner. To help protect yourself against legal action, you should seek to obtain the copyright owner's permission in writing before you copy or re-use the work. The copyright owner has the right to refuse you permission, to set conditions and/or to ask you to pay a fee for permission.

If you need the Library to undertake the copying for you, and your request does not fall within an exception in the Copyright Act, a Library staff member will need to see evidence of the copyright owner's permission before the copy is made.

Adhere to moral rights

You also have a responsibility to ensure that your copying or re-use of a work does not infringe moral rights. For instance, you should credit the work using the author(s) preferred form(s) of attribution. If the author is not known, then 'author unknown' is an appropriate description. 'Anonymous' should be used where the author intended not to be identified. In no circumstances should you credit the work to someone else or to yourself. You should not treat the work in a derogatory way.

What happens if I infringe copyright?

In cases of copyright infringement, it is usual for the copyright owner to contact the alleged infringer to explain the nature of their complaint. Many disputes are resolved at this stage, and pointing to your good faith may help in such negotiations. However, if you do infringe copyright, the owner has the right to sue you, and a court may order a variety of remedies. Under current law, it is no defence to say that you did not know you were infringing copyright, or that you used reasonable efforts to locate the copyright owner. The Copyright Act also makes certain activities a criminal offence.

Material not protected by copyright

You do not need to obtain any permissions where:

• the item was never protected by copyright;
• copyright has been waived, such as by the author marking their work with a Creative Commons’ CC0 – ‘No Rights Reserved’ open licence; or
• copyright has expired and the work is in the public domain.

Not all works in library collections have been protected by copyright during their existence, although other areas of law might apply. For example:

• A gum leaf inscribed with the words ‘Dardanelles, 1915’ as a memento of the First World War was never covered by copyright because single words (even invented words), names, titles and slogans are too small and unoriginal to be protected by copyright. However, a word or name might be protected as a registered trade mark.
• Objects such as a medal are not covered by copyright, but may be protected by design law.
• An inventor’s prototype may not be covered by copyright, but may be protected by a registered patent.
• A church’s registers of births, deaths and marriages may not be covered by copyright, but access might be restricted by the church on the grounds of privacy to protect personal information.

Uses of in-copyright material that are covered by ‘exceptions’

Australian copyright law allows you to copy or re-use in-copyright material in certain circumstances. The provisions of the Copyright Act that set out these circumstances are known as exceptions. If an exception applies, you do not need to ask the copyright owner for permission to undertake acts within its scope.

For example, the fair dealing exceptions can apply where you copy material for the purpose of research, study, criticism, review, parody, satire, reporting the news, or giving legal advice. The Copyright Act expressly states that certain acts constitute fair dealings, such as copying up to 10% or one chapter of a book, or copying one article, for research or study. However, in other cases, you will need to consider the elements of fair dealing as set out in the Copyright Act. There are also exceptions, which allow some copying by cultural and educational institutions and on behalf of people with print or intellectual disabilities. These are particularly relevant where you ask the library to reproduce collection material and supply a copy to you. Amendments i 2017 introduced exceptions to facilitate the import and export of accessible formats of published works (in accordance with the provisions of the Marrakesh Treaty) and exceptions that enable persons with a disability and anyone assisting them, as well as organisations assisting persons with a disability to use copyright material. The Australia Copyright Council website provides further information on the Copyright Amendment (Disability Access and Other Measures).

Restrictions for other reasons

In addition, special restrictions not related to copyright often apply to the copying of rare or unique works in the Library's collections. These may be due to preservation concerns, conditions of acquisition, or because of the operation of other laws (such as defamation and privacy).

Copy and re-use without the Library's permission

If you make your own copy items from the Library's collections without seeking any additional permission from us, you accept the responsibility to make sure you do not infringe copyright or moral rights, as set out in the section on Your responsibilities.

Copying and re-use that does need the Library's permission

If you ask the Library to do the copying for you, you will be asked to complete paperwork that confirms that either the permission of the copyright owner has been obtained or no such permission is necessary (for instance because an exception applies).

In contrast, some collection items may have access restrictions that require permission from the Library before you copy or re-use them. This permission does not relate to any copyright in the item, but relates to collection management issues, such as the need to ensure that fragile items are handled with care, and that the Library is properly attributed for certain public uses.

The Library asks you to seek this permission for two reasons:

• Library staff need to check whether any special restrictions apply to the works. A special restriction may apply, for example, because we agreed to a request by a collection donor that they retain control of copying for a certain period, even though they may not own copyright in the works they donated. These restrictions are often requested because the material contains private or sensitive information.
• Library staff need to request your agreement to cite the creator and title of the rare or unique work you are copying, and to acknowledge the Library as the owner. That way, anyone who comes across your reproduction can trace the material back to the Library's collection.

Rare or unique works are often fragile or valuable so can only be copied by Library staff on your behalf. A fee may be payable to cover the Library’s costs.

Copying and re-using digitised material from the Library's website

Digitising does not change the copyright status of material. When a public domain photograph is digitised, the digital version is also in the public domain. The digitised version of an in-copyright work has the same duration of copyright as the original.

You will find digital copies of items from the Library’s collections, such as photographs, diaries, letters or recorded interviews on the Library’s website. Where this material is out of copyright it may be freely used provided the Library and the creator are acknowledged; however, the Library does not endorse any inappropriate or derogatory use.

Use of digital copies of in-copyright material may require a request for permission unless your use falls within one of the exceptions, such as research or study. The need to request permission will usually be stated on the Library’s website in association with the digital copy.

You need to ask the Library’s permission because a copyright owner may have allowed us to put a copy on our website but not allowed us to authorise uses beyond research or study. In other cases the Library may have put the digital copy online using one of the exceptions in the Copyright Act that apply to libraries. These exceptions are not transferable to the public. When you ask us for permission to copy or re-use the material, we will tell you whether copyright or any other restrictions apply.

Requests to copy digitised items from the Library catalogue need to be requested through our Order a Copy Service. When you place an order through our copy ordering service, we will let you know if any copyright restrictions apply.

Finding copyright owners for books and other printed material

To work out who owns copyright in a work, look for a copyright statement on the work. It will often look like this: © John Smith 2009. On books, the copyright statement often appears on the back of the title page. If you cannot find the name of the copyright owner that way, check the record in the Library's catalogue.

Here is an example of a catalogue record, with the potential copyright owners highlighted. Copyright owners are generally authors, illustrators, translators or publishers.

Try contacting the publisher first. Publishers are easier to find than authors are, and if the author is the copyright owner, the publisher may be able to give you the author's contact details or forward your request to them.

You may be able to find the publisher through the Australian Publishers Association. Another useful resource is Margaret Gee's Australian Media Guide. There are a number of online directories for overseas publishers such as the Publishers Directory maintained by Publishers Global . If you wish to contact an author directly, the Australian Society of Authors may be able to help.

Finding copyright owners for rare and unique material

If you wish to find the copyright owner of a rare or unique work in the Library's collection, please contact the Library. Staff may be able to provide you with the copyright owner's contact details. There are separate procedures and resources for contacting custodians of Indigenous cultural content.

Agencies that represent copyright owners

Instead of contacting the copyright owner directly, you may wish to contact an agency that represents copyright owners. These agencies can authorise you, on behalf of the copyright owner, to copy, perform or broadcast a work, usually for a fee. Some examples are:

• Copyright Agency Limited (CAL) for books, essays and articles;
• Viscopy (which has now merged with Copyright Agency Limited) for visual works; and
• Australasian Performing Rights Association/Australasian Mechanical Copyright Owners Society APRA/AMCOS) for music.

What if the copyright owner is hard to trace?

It may be difficult to find a copyright owner, especially when copyright has passed to heirs or copyright was owned by a company that has gone out of business. To find heirs named in an Australian creator’s will, contact the Probate Division of the Supreme Court in the State where the creator died. To find information about what happened to the assets (copyright is an asset) of an Australian company which has gone out of business, try the Australian Securities and Investments Commission.

If you are unable to identify or locate a copyright owner, you will need to decide whether you are willing to proceed with your proposed copying or re-use, and hence risk infringing copyright. For instance, some people decide to proceed with publication, but include a statement inviting copyright owners to come forward. If you decide to follow this course, it may be wise to keep detailed records of your attempts to clear rights, and to speak with a lawyer about your exposure to risk. Under the current law, the fact that you have made good faith attempts to identify and contact the copyright owner does not protect you from legal action under the Copyright Act.

Libraries use the term ‘orphan work’ to describe material where the copyright owner can either not be identified or located and permission to copy the work or publish it online cannot be obtained. An orphan work’s appearance on the Library’s website is not a guarantee that you can use it for any other purpose. The Library may have put the digital copy online using one of the exceptions in the Copyright Act that apply to libraries. These exceptions are not transferable to the public.

If you as a copyright owner find material on the Library’s website for which you have not given permission, the Library’s takedown position statement (see section below) explains the steps that can be taken to contact the Library.

Copying and re-using works with indigenous cultural content

Although copyright law applies to indigenous works in the same way as it applies to other works, indigenous works may have additional legal and cultural issues, for instance because they include secret or sacred information, or information obtained without the consent of the relevant Indigenous people. As such, the Library has developed policies for its indigenous collections.

One of these is that you may be required to seek cultural clearances from Aboriginal and Torres Strait Islander communities, families, individuals or organisations before you access or reproduce some Aboriginal and Torres Strait Islander material. Should cultural clearances be required, the Library will assist you to understand the process involved in meeting your obligations to consult with Aboriginal people and Torres Strait Islanders.

Copying

The act of copying on a photocopier or scanner, taking a digital camera shot, downloading from the internet or the Library making a copy for you.

Public domain works

Works where copyright has expired.

Published works

Works of which reproductions have been supplied to the public, such as books, newspapers, magazines, most maps, commercially-made music CDs and television broadcasts.

Rare and unique works

Examples from the Library’s collection include unpublished works and rare books.

Re-use

Using a copyrighted work in a print or web publication or website, in a performance, adaptation, broadcast, exhibition, screening and even making a translation of a work.

Unpublished works

Works of which reproductions have not been supplied to the public. These can include architectural plans; archival material including diaries, letters and the records of businesses and organisations; art works; hand-drawn maps and music scores; oral history sound recordings; and photographs.

The current version of the Copyright Act 1968 (Commonwealth) includes all changes made by amending legislation, such as the Copyright Amendment (Moral Rights) Act 2000, the Copyright Amendment (Digital Agenda) Act 2000, the relevant parts of the US Free Trade Agreement Implementation Act 2004, and the Copyright Amendment Act 2006 and the Copyirght Amendment (Disability Access and Other Measures) Act 2017. There is generally no need to look at any of these amending acts.

For an overview of the Copyright Act see a short guide to copyright from the Department of Communications and the Arts.

Exceptions that allow copying without permission

The Australian Copyright Council has an excellent website that provides a range of information sheets.

Collecting societies and other ways to find copyright owners

• Copyright Agency (CA) - pay for a licence to copy books, articles, essays and artwork.
• Australasian Performing Rights Association (APRA) and Australasian Mechanical Copyright Owners Society (AMCOS) - pay for a licence to copy, perform or broadcast music.
• Screenrights - educational institutions and government agencies can pay for a licence to copy or broadcast certain film, television and radio productions.
• Phonographic Performance Company of Australia (PPCA) - pay for a licence to broadcast recorded music or perform it in public.
• Australian Publishers Association - find links to around 185 Australian publishers.
• Publishers Global - find publishers listed by country. It has links to publishers in around 55 countries, including links to around 420 Australian publishers.
• Firms Out of Business (FOB) - lists some of the international publishing firms, magazines, literary agencies and similar organisations that are no longer in existence.
• Writers Artists and Their Copyright Holders (WATCH)  a useful source for contact details of international writers.
• Australian Society of Authors - lists Australian authors with links to their individual web pages.
• Australian Cartoonists’ Association – a list of full members, many with links to their contact details. 
• Australian Copyright Council provides an information sheet, ‘Government: Commonwealth, State & Territory, November 2014’, on ways to contact government agencies to get permission to copy their material.

Organisations with expertise in copyright and other intellectual property rights

• Arts Law Centre of Australia
• Australian Copyright Council
• Australian Digital Alliance
• Australian Libraries Copyright Committee (ALCC)
• Centre for Media and Communications Law, University of Melbourne
• Creative Commons Australia
• Department of Communications and the Arts
• Intellectual Property Research Institute of Australia
• IP Australia

Creative Commons refers to an international initiative that aims to provide a mechanism for transparent, unambiguous licensing of copyright material that neither assumes nor requires the commercialization of content. The organisation provides a set of free, copyright based licences to help creators easily identify how others may use their work legally. Creative Commons licences empower creators to positively express how their creative works may be used by others and facilitate long term access and re-use of creative works, whilst retaining copyright ownership of their material.

Many Australian and international governments, universities, private sector organisations and individuals have adopted Creative Commons licensing for their works.

How do the licences work?

The licences allow creators to release some rights to their works, such as the right to copy, share or modify works, while reserving other rights. Creators can choose from a range of protections and permissions, creating a "some rights reserved" environment which falls between the "all rights reserved" function of copyright and the "no rights reserved" function of the public domain.

Unlike works protected by traditional copyright systems, works licensed under Creative Commons afford users certain 'baseline rights' as standard. This means that if a work is licensed using Creative Commons, these rights are given implicitly and users do not need to obtain permission in order to exercise them. However, this is conditional on the user's correct acknowledgement of the original creator of the work. All Creative Commons licences contain a mandatory attribution protection that requires users to attribute the creator in the manner they request, without implying the creator's endorsement of the user or user's new work.

The 'baseline rights' common to all Creative Commons licences afford users permission to:

• copy works
• distribute works
• display or perform works
• communicate (i.e. by making works available online), or
• format shift verbatim copies of works (i.e. transferring work in its original, unaltered format - for example, copying an MP3 file from a CD to computer)

Creators can then choose their desired combination of additional protections, giving permission for commercial or for exclusively non-commercial use of their work, and permission for users to modify works or to use them only in their original, unaltered form ('No Derivatives'). Creators can also enforce a 'Share Alike' permission, giving users the right to reuse and modify works on the condition that users release, or 'share', any resultant derivative works under the same licence terms as the original.

Further information about the different types of licences can be found via Creative Commons Australia.

How can I tell if a work is licensed under Creative Commons?

Creative Commons uses universally recognisable symbols to indicate the type of licence in use. Typically a licence tag will be placed at the bottom of the webpage or first page of the document, linked to an outline of the rights and protections afforded by the licence. Clicking on the licence tag will take you to a user-friendly summary of your rights and obligations as a user of the work.

How can I use Creative Commons for my own works?

Creative Commons is a copyright based system, and licences are assigned by the copyright holder. This means that the licence lasts for the full duration of the work's copyright (see the section on How long does copyright last?). You must hold the copyright of the work you wish to licence under Creative Commons. If the work is collaborative, you must obtain permission from the relevant additional parties before choosing a Creative Commons licence.

If you wish to licence a work that contains third party copyright content, such as digital images, maps, quoted text, or similar material, you could:

• Contact the relevant rights holders and request that they allow their work to be licensed under Creative Commons.
• If you are unable to contact the rights holders, or if the rights holders do not permit their content to be licensed under Creative Commons - licence the work under Creative Commons, ensuring that you attribute the third party content as copyright of the original creator/s and indicate that their material is not included under the Creative Commons licence used for your own work.

Creative Commons licences are easy to apply. Simply go to the Creative Commons Australia website and follow the 'choose a Creative Commons licence' link.

State Library of Western Australia, as a member of National and State Libraries Australasia (NSLA), has endorsed a Position Statement on Takedown requests.

NSLA is committed to the principles of freedom of expression and universal access to information and knowledge. These principles are fundamental to the library profession and recognised as pivotal components of our democratic traditions; represent a major driving force in the creation of new ideas and innovation; and support cultural understanding and sustainable socio-economic development.

Responding to the proliferation of digital technologies and enhanced community expectations for ‘anywhere, anytime’ access to information, libraries are continuing to build and deliver online collections, providing the greatest possible access to local and global communities.

NSLA libraries have mandated roles to collect and preserve cultural heritage, provide open and equitable access to information, and support the growth of knowledge and ideas. Given these responsibilities, materials provided online will be taken down (or have other access restrictions imposed) only in extraordinary circumstances.

In making collections available online NSLA libraries act to respect jurisdictional legal considerations. However NSLA recognises that despite best efforts there may be occasions when material made available online is considered to breach copyright or other relevant law or contains information that is culturally sensitive.

As a means of promoting a consistent response to takedown requests, NSLA libraries agree to take into account the following general principles:/p>

• The broadest possible online access to collection materials will be provided.
• Permanent access restrictions, deindexing or takedown will be considered as an exceptional response.
• Requests for access restrictions, deindexing or takedown will take into account the relationship of the requestor to the material.
• Requests for access restrictions, deindexing or takedown will take into account specific jurisdictional legislation and related exemptions.
• Access restrictions or takedown of material made available online should, as far as practical, be openly acknowledged with a statement noting the takedown.
• As circumstances change, or after a period of time, online material that has been taken down, restricted or deindexed should be reviewed and may be reinstated.

In terms of copyright infringements, Australia has legislated to extend safe harbours protection to include cultural, educational and disability groups where they provide online services to the public.

If you have concerns about any online material provided by the Library, please contact us in writing providing the following:

• Your contact details;
• Description and details of the material in question;
• URL of where you found the material;
• If your concern is regarding copyright ownership, provide proof that you’re the rights holder or an authorised representative of the rights holder; and
• The reason for your request, including but not limited to copyright law, privacy laws, data protection, obscenity, defamation, etc.

Send your request to:
Manager Policy and Research
State Library of Western Australia
25 Francis Street
Perth Cultural Centre
Perth WA 6000
Australia>

Email: info@slwa.wa.gov.au

The Library will acknowledge your takedown request in writing and access to the online material may be temporarily removed until a decision is agreed.

All effort will be made to resolve takedown requests quickly.