Glossary

Under statutory licence, an entire artistic work can be copied if:

• it accompanies and explains or illustrates text which can be copied under the educational copying provisions
• it is not separately published, or
• if it is separately published, the person making the copy is satisfied, after reasonable investigation, that a hard copy of the work is not available within a reasonable time at an ordinary commercial price
• if it is being reproduced from a digital copy. There is no requirement to apply the tests of separate publication or commercial availability.

Educational institutions can copy television and radio broadcasts under Part 113P of the Copyright Act 1968 and within the conditions of our statutory licence with Screenrights. The copies must be for the educational purposes of the institution, although there is no limit to the amount that may be reproduced. If broadcast copies are communicated online, access must be restricted to staff or students of the institution. The protection afforded under this licence is lost if the copy is sold or made available, in whatever form, to other than staff or students. These copies are also referred to as off-air recordings.

The Copyright Agency Limited (CAL) administers the statutory licence between educational institutions and copyright owners. The CAL licence covers the reproduction and communication of text and graphic copyright works. The licence has very strict conditions relating to the provision of material online, and for this reason such material is required to be registered and placed in myReadings. Material made available to staff and students under this licence is also subject to conditions requiring the fixture of warning notices, limitations to amounts and limitations as to audience. Print materials made available to students under this licence cannot be sold for profit. Cost recovery is permitted.

Works 'not available within a reasonable time at an ordinary commercial price'

Applying the commercial availability test means that, after reasonable investigation, the person is satisfied that a copy, not being a second hand copy, is not available within a reasonable time and at an ordinary commercial price.

• 'Reasonable time' is interpreted as two weeks for periodicals and six months for text books. An interpretation for other types of work is not available, and reasonable may need to be considered in the context of intended use.
• 'Ordinary commercial price' would mean the recommended retail price or the price generally available to the University through it's normal suppliers. Note that if an item is available in electronic form but not hard copy form, it is deemed to be available and you may copy a reasonable portion only.
• 'Reasonable investigation' would mean that the institution uses it's usual practices of obtaining and identifying resources.

Communicating a work means making the item or part of the item available online (uploaded on a server in a form that is able to be accessed) or electronically transmitting (sent as a file attachment or email to another person). There are strict limits to communications that, except for periodical publications and insubstantial portions, apply to the University as a whole, regardless of intended audience. Items that are to be communicated online must be registered.

myReadings is the centralised location for all copyright material that is made available online, enabling the level of monitoring required under our CAL Licence.

The process of converting hard copy source material into a digital version, enabling the item to be communicated electronically. The reproduction limitations for digital copies for educational purposes are similar to reproduction guidelines for hard copy materials, although communication limits are much stricter than for hard copy distribution.

An entire text or graphic work can be copied if:

• it is an article in a periodical publication (journal, newspaper, etc.)
• it is a work of fewer than 15 pages published in an anthology
• it is not separately published, or
• the person making the copy is satisfied, after reasonable investigation, that a copy of the work is not available within a reasonable time at an ordinary commercial price (see Commercial availability test and Artistic works, copying).

This also applies to the communication of an entire work under educational copying provisions.

A person may make a reproduction or adaptation of a work as part of a question to be answered in an exam, or in answer to an exam question. This provision covers formal examinations, and does not cover such reproduction for the purpose of setting practice exams or including past exam papers in study guides.

Exclusive rights of the owners of copyright include the right to:

• reproduce the work in material form
• publish the work
• perform the work in public
• make an adaptation of the work
• do, in relation to a work that is an adaptation of the first-mentioned work, any of the acts specified in relation to the first-mentioned work
• communicate the work to the public
• in the case of computer programs and sound recordings, enter into commercial rental arrangements
• in the case of broadcasts, re-broadcast or copy (visual images and sound recordings)

Fair dealing refers to uses of copyright material which are non-remunerable and considered fair. The categories of fair dealing are (personal) research and study, criticism and review, reporting the news or for the purposes of judicial proceedings.

Infringement occurs when a person does with a copyright work anything that is defined as an exclusive right of a copyright owner that isn't a fair dealing, that is undertaken without the protection of the statutory educational use licences, or is undertaken in the absence of explicit permission from copyright owners.

Under Australian law, prior to 1 January 2005, if the creator of the copyright item had been dead for more than 50 years and the item was published within their lifetime, the work generally passes into the public domain. If the work was not published in their lifetime, the copyright period commences from the date of publication. On 1 January 2005 this period was extended to 70 years, in most cases, as part of the Australia-US Free Trade Agreement. However, copyright in a work cannot be revived once it has lapsed regardless of copyright ownership and therefore works that were out of copyright as at 1 January 2005 remain so. It should be remembered, however, that copyright laws differ between countries, and what may be out of copyright (or in the public domain) in Australia may still be covered by copyright provisions in other countries.

Moral rights are applicable to any work in which copyright subsists, except for those films and works included in a film made prior to the commencement of the Act (December 2000). The rights remain with the creator, irrespective of the ownership of copyright and remain in force for the duration of the copyright protection of the work. The rights are the right of attribution, the right to not have authorship falsely attributed and the right of integrity.

If a retailer or publisher confirms in writing that a work is out of print or that an electronic copy is not available, then you may reproduce and communicate more than a reasonable portion (including the whole item). Keep a record of inquiries.

Educational use/statutory licence conditions require that any work placed online must only be available to staff and students of the institution. Copyright works placed on publicly-accessible websites will not have the protection of statutory licence provisions and, unless explicit permission has been obtained or the work is unequivocally out of copyright, they will be infringing reproductions and communications.

In cases other than where an entire work can be copied (see Out of print work; Unavailable works and Works not separately published), only a reasonable portion can be reproduced and communicated under educational statutory licence provisions. Note that reasonable portions in this context do not apply to films or sound recordings.

Digital copies of items distributed to students need to be registered through myReadings.

Strict communication limits apply University-wide. These can only be administered successfully via a central register.

Reproduction and communication limits are similar, although there are strict limitations on communicating works online. These limits do not refer to periodical publications, where the communication limits are the same as reproduction limits.

Part 113P of the Copyright Act 1968 contain provisions which allow educational institutions to use copyright material subject to certain conditions for educational and administrative purposes without the permission of the copyright owner. Statutory licensing systems effectively remove the right of copyright owners to deny reproduction requests to educational institutions, in return for the payment of equitable remuneration.

Works that are not available within a reasonable time at an ordinary commercial price - the 'commercial availability test'

More than a reasonable portion of a work may be reproduced if it is not available within a reasonable time at an ordinary commercial price. The person making the copies must be satisfied, after reasonable investigation, that this is the case.

• 'Reasonable time' is interpreted as two weeks for periodicals and six months for text books. An interpretation for other types of work is not available, and reasonable may need to be considered in the context of intended use.
• 'Ordinary commercial price' would mean the recommended retail price or the price generally available to the University through it's normal suppliers. Note that if an item is available in electronic form but not hard copy form, it is deemed to be available and you may copy a reasonable portion only.
• 'Reasonable investigation' would mean that the institution uses it's usual practices of obtaining and identifying resources.

All digital copies and communications must contain a 113P Copyright warning notice or AV Warning Notice . The warning notices must be brought the attention of recipients either at the same time or before the actual communication. If sending items via email, the Warning Notice could appear prominently in the text of the accompanying message.

If a work has not been published on its own unaccompanied by any other works, but as part of a collection or anthology, it is not considered to be separately published and more than a reasonable portion may be copied. If the work has been separately published and you wish to copy more than a reasonable portion, the commercial availability test will need to be applied.

If a work has not been separately published, then generally the complete work can be copied, noting that there is a limit for hard copy reproductions of items in literary or dramatic anthologies (i.e. a complete work of not more than 15 pages in that anthology).