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Material not protected by copyright

You do not need to obtain any permissions where:

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 trademark.
  • 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 1968 (Act) (Cwlth) 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 when you copy material for the purpose of research, study, criticism, review, parody, satire, reporting the news, or giving legal advice.

The 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 Act. These are particularly relevant when you ask the State Library to reproduce collection material and supply a copy to you. There are also exceptions which allow some copying by cultural and educational institutions and on behalf of people with print or intellectual disabilities.

Amendments in 2017 introduced exceptions to facilitate the import and export of accessible formats or published works (in accordance with 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 Australian Copyright Council website provides further information on the Copyright Amendment Act (Disability Access and Other Measures).

Key exceptions in the Copyright Act 1968 (Cth)

The Copyright Act 1968 (Cth) contains many exceptions to infringement.

This table identifies some that are particularly relevant to activities of library patrons (column 1). If one of these exceptions applies to your proposed use, you can undertake that use without seeking the permission of the copyright owner. You must keep your activity within the scope of the exception.

For example, exceptions are often limited by the type of material to which they apply (column 2) and have other requirements that you must follow (column 3). Under some exceptions, the collection item must be copied by the Library on your behalf – you cannot copy it yourself (column 4). In some cases, more than one exception may apply to the same conduct.

While some exceptions are defined using very specific language, others are written more broadly – in particular, fair dealing. If you have any questions about whether your proposed use falls within an exception, it may be wise to seek legal advice.

Even if copying falls under an exception, you may need to obtain the Library’s permission to make or obtain a copy of certain material. This may be due to preservation concerns, donor conditions or concerns about private or sensitive information. Similarly, for fragile material, the Library may insist on assisting you with copying or making any reproductions on your behalf.

Information given by the Library does not amount to legal advice. If in doubt, seek legal advice.

Purpose of use: Research or study

Exception

Material covered by exceptions

Application of exception

Who can undertake the copying

Fair dealing generally: sections 40 and 103C

works (literary, dramatic, musical and artistic works) and audiovisual material (sound recordings, films and broadcasts)

The dealing must be for research or study purposes and be fair.

Relevant factors in determining whether the act is a fair dealing include:

  • the purpose and character of the dealing
  • the nature of the work being dealt with
  • whether that work is commercially available
  • the market effect of your dealing
  • the importance and amount of the part copied.

Some specific dealings are taken to be fair dealings, and you do not need to apply these factors — see next row.

the patron*

Fair dealing: deemed fair dealings under subsections 40(3)–(7).

articles in periodical publications and published works

Articles: the reproduction of all or part of an article from a periodical publication is taken to be a fair dealing. This exception does not apply if another article in the publication is also reproduced for the purpose of different research or study.

Published editions: it is a fair dealing to reproduce up to a ‘reasonable portion’, which is defined as:

  • For a literary, dramatic or musical work published in hard copy form: 10% of the number of pages in the edition OR a single chapter.
  • For a literary or dramatic work published in electronic form (but not a computer program or an electronic compilation): 10% of the number of words OR a single chapter.

If you subsequently want to make a further reproduction from the same published work, you cannot invoke this exception again.

the patron*

Sections 49 and 50

articles in periodical publications and published works

This exception allows the Library to reproduce articles and published works on the request of patrons.

  • You must follow the procedures for making the request. A signed declaration may be required.
  • The Library will assess your request by reference to the requirements in the Copyright Act, and let you know whether they are satisfied.

the Library

Subsection 51(1) & section 110A

unpublished works, sound recordings and films

The exception only applies to material:

  • that has not been published;
  • that is kept in a collection that is open for public viewing or listening; and
  • at least 50 years has passed since the time the author died (for works) or the recording or film was made (for sound recordings and films).

the patron or the Library

Subsection 51(2)

unpublished theses and similar works

You must satisfy the Library that you require the reproduction for the purposes of research or study.

the Library

Purpose of use: Criticism or review

Exception

Material covered by exceptions

Application of exception

Who can undertake the copying

Fair dealing: section 41

works (literary, dramatic, musical and artistic works)

The dealing must be for criticism or review purposes and be fair. In addition:

  • The criticism or review must be of that work or another work.
  • You must include an acknowledgement of the work: the title or a description of the work should be given and (unless the work is anonymous, pseudonymous, or the author has directed that his or her name should not be used) the author should be identified.

the patron*

Fair dealing: section 103A

audiovisual material (sound recordings, films and broadcasts)

The dealing must be for criticism or review purposes and be fair. In addition:

  • the criticism or review must be of that audiovisual item, or another work or audiovisual item
  • you must include a sufficient acknowledgment of the audiovisual item.

the patron*

Purpose of use: Parody or satire

Exception

Material covered by exceptions

Application of exception

Who can undertake the copying

Fair dealing: sections 41A and 103AA

works (literary, dramatic, musical and artistic works) and audiovisual material (sound recordings, films and broadcasts)

The dealing must be for the purpose of parody or satire and be fair.

the patron*

Purpose of use: Judicial proceedings or professional advice

Exception

Material covered by exceptions

Application of exception

Who can undertake the copying

Fair dealing: sections 43 and 104

works (literary, dramatic, musical and artistic works) and audiovisual material (sound recordings, films and broadcasts)

The dealing must be fair and for the purpose of giving professional advice by a lawyer, patent attorney or trademarks attorney.

the patron or the Library

Purpose of use: News reporting

Exception

Material covered by exceptions

Application of exception

Who can undertake the copying

Fair dealing: sections 42 and 103B

works (literary, dramatic, musical and artistic works) and audiovisual material (sound recordings, films and broadcasts)

The dealing must be fair and for the purpose of, or associated with, reporting the news in:

  • a newspaper, magazine or similar periodical; or
  • a communication or in a film.

If the news is reported in a newspaper or magazine or similar, a sufficient acknowledgement must be made.

the patron*

Purpose of use: Publication

Exception

Material covered by exceptions

Application of exception

Who can undertake the copying

Sections 51, 52 and 110A

unpublished works to which section 51(1) applies.

The procedures in sections 51 and 110A can also be used where the patron requires the reproduction with a view to publication.

There are procedures in section 52 that allow material reproduced under subsection 51(1) to be published in a new work without the permission of the copyright owner — but these must be strictly followed.

the patron or the Library

Purpose of use: Assisting people with a disability

Exception

Material covered by exceptions

Application of exception

Who can undertake the copying

Section 113E

all copyright works

Providing access to in-copyright material for people with disabilities which would prevent them from using or enjoying the material is fair dealing. The following factors must be considered:

  • the nature of the work being dealt with;
  • the market effect of your dealing; and
  • the importance and amount of the part copied.

the patron or the Library

 

Section 113F

all copyright works

An organisation can provide access to in-copyright material to people with disabilities. It is fair dealing where the material:

  • is in a format required by the person because of a disability; and
  • Is not commercially available

the patron or the Library

 

Activities not covered by other exceptions

Exception

Material covered by exceptions

Application of exception

Who can undertake the copying

Section 200AB

all copyright works

Section 200AB applies to uses performed for the purposes of maintaining and operating the Library. This may include services provided to patrons.

Any reliance on section 200AB will be assessed by, and will be at the discretion of, the Library.

the Library

*There is uncertainty in Australia regarding whether the Library can copy on the patron’s behalf under fair dealing.

More information about fair dealing is available from the Australian Copyright Council.

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).