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Purpose
Queensland Government agencies make frequent use of material in which the copyright is not owned by the State of Queensland ("third party copyright material").
The main purpose of this Standard is to highlight obligations on the part of Queensland Government agencies under the Copyright Act 1968 (Cth) in relation to third party copyright material. In addition, Mandatory Principle 4 is relevant where certain agencies wish to use material in which copyright is owned by the State of Queensland or another Queensland Government agency.
Policy Statement
Queensland Government agencies must not infringe third party copyright or moral rights, or make unauthorised use of performances. They must also fulfil their obligations under the Copyright Act 1968 (Cth) in relation to the use of third party copyright material. For example, agencies must:
- obtain licences from copyright owners when necessary
- not do anything which would amount to an infringement of an author's moral rights, and obtain moral right consents when necessary
- obtain authorities from performers when necessary
- comply with relevant agreements which are entered into with copyright collecting societies (for example, participate in surveys of copyright use and pay remuneration)
- comply with applicable provisions of licences, permissions, consents, etc. on which the agency is relying
- inform copyright owners in accordance with section 183(4) (relating to acts done "for the services of the State") when necessary
- obtain necessary copyright approvals from custodial agencies for use of Queensland Government copyright materials.
Scope
This Information Standard, Use of Copyright Materials (IS46), relates to all domains in the Information layer of the Queensland Government Enterprise Architecture (QGEA) Framework.
The management by agencies of copyright which is owned by the State of Queensland (Crown copyright) is outside the scope of this Standard. Agencies should refer to the Queensland Public Sector Intellectual Property Principles and Queensland Public Sector Intellectual Property Guidelines for guidance on that subject.
Agencies should bear in mind that, in addition to obligations in relation to copyright, moral rights and performers' protection under the Copyright Act 1968 (Cth), they may also need to consider other legal issues which restrict what they can do with particular copyright material. Such other issues which may need to be considered might include, for example, issues relating to confidentiality, privacy, defamation and contractual obligations. This Standard is not intended to address such issues.
Issue and review
This Standard was endorsed by the Director-General of the Department of Public Works in December 2008. Review of this Standard will occur on an annual basis.
Current Version: 1.0.0 (January 2009).
Implementation
The authority for the implementation of the mandatory principles of the information standard is primarily derived from the Financial Management Standard 1997.
The implementation dates for this Standard are:
High-level risk assessment: Completion July 2009
High risk principles implementation: Completion January 2010
Implementation advice and toolboxes
Implementation advice and toolbox material have been provided to assist agencies in implementing the mandatory principles of the standard.
Mandatory principles
Principle 1 - Accountable management
Each agency must adopt management practices which are designed to ensure that it does not infringe copyright or moral rights, that it does not make unauthorised use of performances as defined in the Copyright Act 1968 (Cth),and that it fulfils relevant obligations under that Act in relation to the use of copyright material. At a minimum, each agency must:
- either develop an agency copyright use policy that sets out the agency's approach to the use of third party copyright materials, or include that information in its intellectual property (IP) policy
- ensure staff are made aware of their obligations with regard to copyright use through appropriate awareness programs
- nominate a 'copyright contact officer' for issues relating to the agency's use of third party copyright material and provide their details to the Queensland Government Chief Information Office, if the agency represents the Crown.
Copyright
Copyright is a type of intellectual property
Copyright material
Material which is protected by copyright ("copyright material") can be divided into "works" (literary, dramatic, musical and artistic) and "subject matter other than works" (soundrecordings, films, sound and television broadcasts and published editions).
Acts comprised in the copyright
The Copyright Act 1968 (Cth) grants copyright owners a set of exclusive rights (during the life of their copyright) to do certain acts in relation to material in which they own copyright. Examples of such "acts comprised in the copyright" are: reproducing the material or a substantial part of the material, and making the material (or a substantial part) available online to the public.
Infringement
Generally, copyright is infringed by someone doing an act comprised in the copyright without the licence of the copyright owner unless the Copyright Act 1968 (Cth) provides otherwise.
If copyright is infringed, a copyright owner may is entitled to seek certain legal remedies against the infringer.
Exceptions
The Copyright Act 1968 (Cth) contains various sections which provide that doing certain acts in certain circumstances do not infringe copyright. An example is section 183(1) - see below.
Obligations
The Copyright Act 1968 (Cth) also imposes obligations on copyright users (including State governments) in certain circumstances.
Examples are obligations imposed on the State to inform copyright unders under section 183(4) or (depending on the circumstances) to pay equitable remuneration to a relevant declared copyright collecting society under section 183A - see below.
Section 183 - "Use of copyright material for the services of the Crown"
Section 183(1) of the Copyright Act 1968 (Cth) provides as follows:
- "The copyright in a literary, dramatic, musical or artistic work or a published edition of such a work, or in a sound recording, cinematograph film, television broadcast or sound broadcast , is not infringed by the Commonwealth or State, or by a person authorised in writing by the Commonwealth or State, doing any acts comprised in the copyright if the acts are done for the services of the Commonwealth or State."
Note that an agency cannot rely on section 183(1) unless the agency is the State (e.g. a core department), represents the State (e.g. where legislation specifies that a statutory corporation represents the State), or is authorised in writing by the State. Agencies should seek legal advice if they are uncertain about their legal status.
Also, an agency cannot rely on section 183(1) unless the activity in question is "for the service of the State".
The Copyright Act 1968 (Cth) does not define what it means by "for the service of the State" and that expression has received little consideration by the courts. The expression probably includes at least any act done for the purpose of performing a duty or exercising a power which is imposed upon or invested in the State executive government by statute or by prerogative. The expression (when used in section 183(1) does not include the reproduction, copying or communication of the whole or a part of work or other subject-matter for the educational purposes of an educational institution of, or under the control of, a State (section 183(11)).
Section 183(4) provides among other things that "where an act comprised in a copyright has been done under subsection 183(1)", the State shall as soon as possible inform the copyright owner as prescribed in the Copyright Regulations 1969 (Cth) unless it appears to the State that the informing the owner would be contrary to the public interest. Section 183(5) provides for determining "ther terms" for the doing of an act under section 183(1).
Sections 183(4) and (5) do not generally apply in relation to a copy made by the State under section 183(1) (other than a copy of computer programs) if the Australian Copyright Tribunal has declared (i.e. appointed) a company as the copyright collecting society forthe purposes of section 183(1) in relation to the copy. In that case, section 183A provides for the State to pay "equitable remuneration" to the collecting society taking into account an estimate of the number of relevant copies made under section 183(1). The estimate is arrived at using a sampling system. See the implementation advice under Principle 2 for more information about Queensland Government arrangements with collecting societies.
Further information
Further information regarding copyright can be found on the Queensland Government Intellectual Property Govnet website (Government employees only).
General enquiries about using copyright materials for the services of government should be emailed, in the first instance, to the agency copyright contact officer, before emailing qgcio@qld.gov.au.
An author of a copyright work does not necessarily own the copyright in the work.
The Copyright Act 1968 (Cth) also confers certain rights on authors of literary, dramatic, musical, or artistic works, and films. See Part IX of the Act. In general terms, these rights are: the right of attribution of authorship; the right against false attribution of authorship; and the right of integrity of authorship. Agencies should refer to Chapter 11 of the Queensland Public Sector Intellectual Property Guidelines which provides extensive information on moral rights.
The Copyright Act 1968 (Cth) also confers certain rights on performers. (See part XIA of the Act.) These rights relate to the making and use of unauthorised recordings of live performances (e.g. drama, speeches, music and dance). Unauthorised use may entitle the performer to civil remedies (e.g. damages) and may also give rise to criminal penalties.
Ideally an agency's copyright use policy content should be incorporated as a separate section into the agency's existing intellectual property (IP) policy. Agencies that do not have an IP policy must develop a separate copyright use policy. The policy should cover issues such as:
- copyright awareness, including third party copyright ownership
- statutory and other obligations relating to the use of copyright material
- copyright contact officer roles and responsibilities
- employee responsibilities
- consequences of copyright infringement
- when to seek permission from copyright owners
- when and how to inform copyright owners about government use of copyright in accordance with section 183(4) of the Copyright Act 1968 (Cth).
Agencies need to ensure all employees are informed of their agency's IP/Copyright Use Policy, the risks invloved in misuse and the importance of managing the use of third party copyright materials. Awareness programs might be provided via the agency's intranet, in-house seminars and, for new employees, during induction training.
State schools and TAFE institutes staff whould be referred to the National Copyright Guidelines (www.smartcopying.edu.au) which are designed to provide a reference guide to copyright issues affecting Australian educational institutions.
Agencies should also support employees seeking government-related copyright training opportunities. The Australian Copyright Council holds a variety of annual training courses, seminars and education programs covering a range of issues.
Each agency should also ensure that, if it has been selected for participation in a samply survey of coyright use by government employees, appropriate staff members attend pre-survey training and that the survey is undertaken in accordance with the agreement between the Queensland Government and the copyright collecting society. In the case of surveys conducted for the purposes of section 183A of the Copyright Act 1968 (Cth) (relating to the making of "government copies" under section 183(1)), the Queensland Government Chief Information Office will notify the agency of its selecting and facilitate training.
Schools and TAFE institutions must participate in copyright surveys, as required, under separate educational agreements administered by the Department of Education, Training and the Arts. They are not involved in surveys conducted for the purposes of section 183A of the Copyright Act relating to the making of government copies.
In order to be able the Queensland Government Chief Information Office to provide the appropriate officer within each agency that represents the Crown with information on arrangements with copyright collecting societies relating to the "Crown use" provisions of the Copyright Act 1968 (Cth), related survey obligations and annual invoices, agencies must nominate a contact person for coyright use issues and provide the following details to the Queensland Government Chief Information Office by email to qgcio@qld.gov.au:
- name
- position
- agency
- telephone / fax
- email.
Employees should use their agency's copyright/IP contact officer as their first point of contact if they need advice on copyright related issues.
Principle 2 - Queensland Government arrangements with copyright collecting societies
The Queensland Government has a number of arrangements with copyright collecting societies which are designed to discharge some of the Government's obligations under the Copyright Act 1968 (Cth). Therefore, agencies which are covered by such arrangements must, at a minimum:
- comply with relevant copyright collecting societies arrangements
- nominate a copyright survey manager when requested, and participate in surveys of copyright use in accordance with the arrangements
- make annual provisions for payment of copyright fees through the Queensland Government Chief Information Office (QGCIO) in relation to Queensland Government arrangements which are negotiated and administered by the QGCIO.
Arrangements between the Queensland Government and copyright collecting societies fall into two broad categories:
- arrangements for the purposes of "Crown use" provisions
- copyright collecting society arrangements with educational institutions
The Queensland Government enters into arrangements with certain copyright collecting societies for the purposes of discharging some of its obligations under sections 183 and 183A of the Copyright Act 1968 (Cth) ("the Crown Use provisions"). (Sections 183 and 183A do not apply to the reproduction, copying or communication of the whole or a part of a work or other subject matter for the educational purposes of an educational institution of, or under the control of, the State.)
Queensland Government Chief Information Office
The QGCIO is responsible for negotiating and managing so-called "whole-of-Government" arrangements on behalf of core departments and other agencies which represent the State and choose to be covered by those arrangements.
Agencies
It is the responsibility of agencies (other than core departments) to consider whether they represent the State and should be covered by arrangements for the purposes of sections 183 and 183A.
In the unlikely event of an agency contemplating entering into an independent arrangement with a copyright collecting society for the purposes of the sections 183 or 183A, the agency must consult with the QGCIO before doing so.
Collecting societies
The relevant collecting societies are:
- Copyright Agency Limited (CAL) - relating to copying works and published editions of works, other than computer programs and works included in sound recordings, films, television or sound broadcasts (for example, books, journals, magazines, newspapers).
- Audio-visual Copyright Society Ltd (Screenrights) - relating to copying transmissions of radio and television broadcasts.
- Australasian Performing Right Association (APRA) - relating to certain public performances of certain musical works.
Obligations
These arrangements may, for example, require agencies to:
- nominate a copyright survey manager when requested
- participate in surveys of copyright use
- make annual provisions for payment of copyright fees through the QGCIO
Copyright fees
Fees payable under the Queensland Government arrangements with copyright collecting societies, which are negotiated and managed by the QGCIO, are normally calculated for each financial year and are due during that financial year. Invoices are paid by the QGCIO, which then recovers the cost from agencies which are covered by the arrangements, in accordance with the government-endorsed funding model. The QGCIO maintains a list of agency contacts to which its invoices are addressed.
The payment of fees in respect of educational copyright agreements covering the government schools and TAFE institutions is managed by the Department of Education, Training and the Arts.
Further information
Details on the above Queensland Government copyright collecting society arrangements are located on the State Government Copyright Licences Govnet website (Government employees only).
Educational institutions (schools, TAFE institutes and the Queensland Police Academy) have separate arrangements with the copyright collecting societies for the purposes of Part VB of the Copyright Act 1968 (Cth). These arrangements cover limited uses of print materials, broadcasts and, in the case of schools, musical works, by teachers and administrative staff, for educational purposes. Those arrangements are administered by the intitutions' respective departments. Further information can be accessed via the Department of Education, Training and the Arts website and the National Copyright Guidelines [PDF, 680 kB] produced on behalf of the Copyright Advisory Group, a committee of the Schools Resourcing Taskforce of the Australian Ministerial Council on Education, Employment, Training and Youth Affairs.
Principle 3 - Use of copyright materials not covered by Queensland Government arrangements with copyright collecting societies
If any agency's use of copyright material is not covered by a Queensland Government arrangement with a copyright collecting society, agencies at a minimum must:
- obtain licences from copyright owners when necessary
- comply with applicable provisions of licences, permissions, consents, etc. on which the agency is relying
- when necessary, inform copyright owners in accordance with section 183(4) of the Copyright Act 1968 (Cth) and the procedure set out in Regulation 25 of the Copyright Regulations 1969 (Cth)
- comply with any terms of use (including the payment of a fee) as referred to in section 183(5) of the Copyright Act, as agreed with the copyright owner or, in default of agreement, as fixed by the Copyright Tribunal.
General guidance about when it is necessary for an agency to obtain a copyright licence from a copyright owner (or the owner's representative) is contained in the decision-making flow chart located in the Use of Copyright Materials Toolbox. Agencies should seek specific advice when in doubt.
Some examples of when it will not be necessary to obtain a copyright licence from a copyright owner (or owner's representative) are:
- where the agency represents the State and wishes to do an act comprised in the copyright "for the services of the State" within the meaning of section 183(1) of the Copyright Act 1968 (Cth). Note, however, that in some cases the agency will still need to inform the copyright owner and may be required to pay the copyright owner (see below in relation to section 183(4) and 183(5))
- where all relevant third party copyrights in the material have expired
- where a section of the Copyright Act 1968 (Cth) provides that certain activity does not infringe copyright (for example: section 43(1) relating to anything done for the purposes of a judicial proceeding, and various sections in Part VB of the Act relating to certain educational institutions).
Conversely, it generally will be necessary or desirable to obtain a copyright licence from a copyright owner (or owner's representative) if all of the following apply:
- the proposed use involves the whole or a substantial part of a third party copyright work
- one or more copyrights have not expired
- the agency's use is not covered by existing licence(s) from the copyright owner(s)
- if it is not possible to rely on section 183(1) (for example, if the use is not "for the service of the State" or there is doubt about that point, or the agency does not represent the State or is not authorised in writing by the State) or the proposed use is commercial in nature
- no other statutory licences apply
- no implied copyright licence exists.
Copyright licences obtained from copyright owners are often limited in regards to what activities are being licenced, and are also subject to various conditions. Examples include licences obtained in relation to computer programs and online journal subscriptions.
The various statutory licences provided by the Copyright Act 1968 (Cth) itself only operate if certain conditions are fulfilled (e.g. "fair dealing" provisions).
The reliance on some statutory licences also involves associated obligations (e.g. obligations to take part in sampling systems and pay remuneration to copyright collecting societies).
Agencies should take steps to ensure that they are aware of the relevant conditions of licences on which they are relying.
Agencies should carefully consider the effect on terms and conditions relating to access and use of copyright material (including terms and conditions on websites) before accepting them. For example, some terms and conditions may impose onerous obligations on an agency or purport to restrict the agency's use of copyright material in ways that would not normally infringe copyright. Legal advice should be sought where the effect of such terms and conditions is unclear.
Software is not covered under Queensland Government arrangements with the copyright collecting societies.
In relation to software, agencies should be aware of Information Standard 45 - Software Licence Management, which outlines consistant policies and practices for the management of all third party software licences and associated electronic media purchased by Queensland Government agencies. Under Information Standard 45, agencies should implement licence monitoring and security controls to ensure risks relating to legal, contractual and copyright obligations are managed on an ongoing basis. For more information please refer to Information Standard 45 - Software Licence Management.
Section 183(1) of the Copyright Act 1968 (Cth) provides that copyright is not infringed by the State, or by a person authorised in writing by the State, doing any acts comprised in the copyright if the acts are done "for the service of the State". See Implementation Advice in relation to Principle 1 for more information.
General obligation to inform copyright owner
Subject to significant exceptions, when an agency relies on section 183(1) of the Copyright Act 1968 (Cth) as the reason why particular activity does not infringe third party copyright, section 183(4) will generally require the State to inform the copyright owner as soon as possible in accordance with that section and the procedure set out in Regulation 25 of the Copyright Regulations 1969 (Cth).
If the agency concerned represents the State, then the agency should give the notice referred to in Regulation 25 in the name of the State. If the agency does not represent the State but is authorised in writing by the State for the purposes of section 183(1), then the notice should be given by the State agency responsible for granting that authorisation.
Exceptions
Exception 1 - contrary to public interest
Section 183(4) does not require the State to inform the copyright owner if it appears to the State that it would be contrary to the public interest to do so.
Exception 2 - collecting societies declared in relation to making certain copies
As a result of section 183A and certain declarations made by the Copyright Tribunal of Australia, section 183(4) does not currently require the State (or agency) to inform the copyright owner about:
- copying literary works (other than computer programs) or artisitc, dramatic or artistic works, except for any such works included in sound recordings and films (but see next point)
- copying transmissions of a sound and television broadcasts (including works, sound recordings and films included in the transmission).
Examples:
Section 183(4) does not require the State (or agency) to inform the copyright owner if the agency makes a copy of a book, journal, magazine or newspaper.
If an agency copies a commercially produced sound recording (e.g. CD) or a film (e.g. DVD) and wishes to rely on section 183(1) as the reason for not infringing copyright, then section 184(4) would generally require the State (agency) to inform the copyright owner.
Execption 3 - other arrangements with copyright owners for the purposes of section 183(1)
A copyright owner may choose to enter into an arrangement with the State that relieves the State of its obiligation to inform the owner in accordance with section 183(4), e.g. the State has entered into such arrangements with the Australasian Performing Right Association (APRA).
What about making material available online and transmitting material electronically?
One of the acts comprised in copyright is the right to "communicate" the copyright material "to the public".
In this context, "communciate" means to make copyright material available online (e.g. on the internet), or electronically transmit copyright material (e.g. by email).
The meaning of "to the public" in this context is not entirely clear. The expression appears to include making material available to the general public on an internet site. Some suggest that placing material on an agency's internal computer network (intranet) for work-related purposes would also amount to a communication to the public in the copyright sense, even though the intranet is accessible only by the agency's own personnel. It is suggested that one officer within an agency emailing copyright material to only one other officer in the agency would not amount to a "communication to the public". Legal advice should be sought where necessary.
The Copyright Act 1968 (Cth) does not enable the Copyright Tribunal to declare (appoint) a copyright collecting society in respect of communicating material to the public under section 183(1).
Accordingly, if an agency relies on section 183(1) as the reason why its "communicating" certain third party copyright material online or by electronic transmission "to the public" does not infringe copyright, the State (agency) should inform the copyright owner as required by section 183(4). That is, unless Exception 1 (contrary to the public interest) or Exception 3 (other arrangements) applies.
If there is a reason (apart from section 183(1)) why an agency's communciation to the public does not infringe third party copyright (e.g. another statutory licence applies or the agency has a licence granted by the copyright owner) then section 183(4) will not require the State (agency) to inform the copyright owner.
When section 183(4) applies, it requires "the State" to inform the copyright owner.
In the case of an agency which represents the State, if the agency has done an act comprised in third party copyright in reliance on section 183(1) and if section 183(4) requires the State to inform the copyright owner, then the agency should inform the owner as soon as possible in accordance with Regulation 25 (Notification of use of copyright material for service of Crown) in the Copyright Regulations 1969 (Cth).
In the case of an agency which does not represent the State, but is authorised in writing by the State for the purposes of section 183(1), then the notice (if required) should be given by the State (agency) responsible for granting that authorisation.
Regulation 25 sets how the notice informing the owner is to be given. For example, if the person giving the notice on behalf of the State does not know the name or address, or knows the name but not the address of the copyright owner (or authorised agent), the notice is to be given by being published in the State Government Gazette.
Regulation 25 specifies what details need to be set out in the notice.
If the State (agency) is required to inform a copyright owner under section 183(4), that section also requires the State (agency) to provide the copyright owner with "such information as to the doing of the act as he or she from time to time reasonably requires".
Section 183(5) of the Copyright Act 1968 (Cth) provides that "Where an act comprised in a copyright has been done under subsection (1), the terms for the doing of the act are such terms as are, whether before or after the act is done, agreed between the Commonwealth or State and the owner o the copyright or, default of agreement, as fixed by the Copyright Tribunal".
When section 183(5) does not apply
By virtue of section 183A, section 183(5) does not apply in relation to the making of a copy under section 183(1) if the Copyright Tribunal has declared (i.e. appointed) a relevant copyright collecting society in relation to that type of copy. See Exception 2 above. In those circumstances, section 183A provides for the State to pay "equitable remuneration" to the collecting society taking into account an estimate of the number of relevant copies made under section 183(1). The estimate is arrived at using a sampling system.
How the terms are determined
The "terms" determined in accordance with section 183(5)may require the agency to pay the copyright owner an amount between them, or (if they do not reach agreement) an amount determined by the Australian Copyright Tribunal.
What terms have already been determined
The State has entered into arrangements with the Australasian Performing Right Association (APRA) in relation to the terms for certain public performances of certain APRA music by certain agencies under section 183(1). For further information, see the Queensland Government Chief Information Office's State Government Copyright Licences Govnet website (Government employees only).
Determining the terms before doing the act
If an agency intends to do an act comprised in the copyright in third party copyright material in reliance on section 183(1) in circumstances where the State (agency) will be required to inform the copyright owner under section 183(4), it is suggested that generally and where practicable, the agency should inform the copyright owner and seek to agree on the terms before doing the act. That is in order to ensure that the agency has an opportunity to make alternative arrangements if satisfactory agreement cannot be reached about the terms or if the terms determined by the Tribunal are not satisfactory to the agency.
Principle 4 - Use by agencies of Queensland Government copyright materials
This principle applies where one Queensland Government agency proposes to use copyright material in which the copyright is owned by, or under the custodianship of, another Queensland Government agency.
Agencies that do not represent the State must obtain copyright approval from the custodial agency before doing any acts comprised in the copyright in that agency's copyright materials, unless a statutory exception provides that copyright is not infringed.
All agencies, regardless of whether they represent the State or not, must, at a minimum:
- ensure that if the intended use is not "for the services of the State" within the mean of section 183(1) of the Copyright Act 1968 (Cth), the use is either approved by the custodian agency or covered by a statutory licence contained in the Copyright Act
- obtain approval from the custodial agency where the copyright material is not publicly accessible
- obtain approval from the custodial agency where the user agency intends to distribute the material (whether or not embodied in other material) to individuals or organisations outside the user agency
- comply with any legitimate use restrictions brought to the user agency's attention by the custodial agency including those relating to privacy, accuracy and/or any third party copyright material embedded in the work
- not infringe the moral rights of the author(s)
- not make unauthorised use of performances (as defined in the Copyright Act 1968 (Cth)).
The Copyright Act 1968 (Cth) uses the expression "the services of the State" in section 183(1) but does not define what is meant by that expression. See implementation advice in relation to Principle 1.
For the purposes of Principle 4, a user agency should regard the expression "for the services of the State" as meaning for the purposes of the agency exercising its normal government duties and powers, but not copying or communicating material for the educational purposes of a State educational institution. If in doubt, the user agency should seek the custodial agency's approval.
Where necessary, user agencies should seek approval through the authorised officer in the custodial agency. For a list of authorised officers, refer to delegations of beneficial use on the Queensland Government Intellectual Property Govnet website (Government employees only). In cases where delegation of beneficial use has not been granted, but potentially could be, any necessary approval will need to be sought from the Administrator (Crown Copyright and Other Intellectual Property).