Copyright licensing

A black fountain pen lays on top of pages of a contract.

Licenses are a common part of how copyright works.
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Copyright licensing is one way to use material without infringing. Licensing is a common way for copyright owners to grant permission to others to use their copyright material on specified terms. If you want to use material that is owned by someone else you usually need permission. In copyright law permission is often issued as a licence.

Licences

You can do anything you have permission to do and the most common form of permission is a copyright licence. If you have a licence to use the material from the copyright owner, and your use is within the scope of the licence, then you have not infringed copyright. The good thing about licences is that you don’t have to know the law – you just have to follow directions. Our information on copyright licensing link to Copyright licensing provides more comprehensive information about copyright licences.

Common terms in a licence relate to the duration (time period the licence lasts for), geography (the territory the licence applies to) and whether the uses granted by the licence are permitted on an exclusive or non-exclusive basis. A licence does not have to be in writing but it is obviously easier to evidence if it is.

Sources of licences

There are a number of types of licences you can secure to allow reuse of copyright-protected material, including:

Direct licences
Licences included in the terms of use or a copyright statement on a website
Standardised commercial licensing
Open content licensing
Voluntary collective licensing arrangements (typically managed by a collecting society)
Statutory licences

Direct licences

A licence can be granted directly by the creator or copyright owner. It may take the form a written contract/licence, or it may be included with a Copyright Deed, Deed of Gift, deposit forms, or similar document.

An assignment of copyright must be in writing and be signed by the assignor. A licence does not have to be in writing but it is obviously easier to evidence if it is.

Common terms in an assignment or licence relate to:

The uses that are permitted under the assignment or licence
The duration of the assignment or licence (time period the licence lasts for)
Geography (the territory the licence applies to)
Whether the uses granted by the assignment or licence are permitted on an exclusive or non-exclusive basis.

Blanket licensing

If direct permission from the copyright owner is one-to-one, then blanket licences are one-to-many. They provide a licensee with permission to undertake specified uses a body of copyright protected material on pre-set terms.

Websites' terms of use or copyright statements

Some website’s terms of use or copyright statement can include a licence that grants limited reuse of content published on the site.

Standardised commercial licences

Standardised commercial licensing arrangements offered online to users. The Newspix image licensing and syndication business unit at News Corp Australia for example licences Australian news, sport and celebrity images from across the company’s print and online mastheads.

Open content licensing and Creative Commons

There are also a number of open content licensing schemes that grant licences to the whole world to reuse copyright material on specified terms. Creative Commons (CC) is one of the most well known of the open content licensing schemes. CC provides free, standardised licences which copyright owners can use to make their copyright material available to the public.

There are other types of open content licensing such as open source software and the SIL Open Font Licence.

Voluntary collective licences and collecting societies

One example of blanket licensing is licences issued by a collective rights management body – often called collecting societies and sometimes called collective management organisations (CMOs) – who represent groups of copyright owners and manage aspects of their copyright collectively. In Australia we have a number of collecting societies including:

APRA AMCOS (Australasian Performing Right Association and Australasian Mechanical Copyright Owners Society) – a collecting society that is authorised by the Australian Competition and Consumer Commission (ACCC) to exclusively licence third parties to play or copy music by Australian and New Zealand members.
PPCA (Phonographic Performance Company of Australia Limited) – a collecting society that licences recorded music for playback in public.
OneMusic is a joint initiative of APRA AMCOS and PPCA set up to licence their works, sound recordings and music videos.
Copyright Agency – a collecting society that licences written content, images and visual arts by Australian members. The organisation operates a number of licensing tools including the Copyright Agency Rights Portal for newspaper, magazine and journal content and images and Visual Arts listing for visual arts content.
Screenrights – a collecting society that licences screen content by Australian members for use by educational institutions in Australia and New Zealand and state and federal governments.

There are other collective rights bodies in Australia including the Australian Screen Directors Authorship Collecting Society (ASDACS), the Australian Writers Guild Authorship Collecting Society (AWGACS) and Christian Copyright Licensing International.

In Australia, many of the collecting societies voluntarily comply with the Code of Conduct for Collecting Societies in Australia.

Statutory licences

Compulsory statutory licences allow copyright users to use copyright material where they may a specified royalty amount and comply with the terms of the licence. They came about to address impracticalities in copyright licensing such as high transaction costs incurred to identify and negotiate with individual copyright owners.

Copyright Agency administer the Statutory Education Licence scheme and the Statutory Government Licence which allows educational and public sector organisations to copy and communicate books, magazines, newspapers, artistic works and other content. Screenrights manages copying and communication of television and other broadcasts in educational and public sector organisations as well as the retransmission of free-to-air broadcasts by cable TV providers.

However, a statutory licence is not required in situations where an exception to copyright applies or you have permission from the copyright owner directly.

Conflicts between contract and copyright

What happens if a contract and an exception conflict? Unfortunately, in Australia, no one knows – there is no clear answer under the law. Best practice is to obey the licence except in special circumstances (e.g. licences that ban disability access).

Barriers to licensing

Some of the common barriers that impact the negotiation of licences include:

A lack of copyright literacy i.e. a lack of understanding of copyright.
An imbalance in the bargaining power between the negotiating parties.
The level of time and effort that typically goes into identifying a copyright owner, make contact with them, request permission for certain uses and negotiate a licence for those uses.
Situations where copyright owners refuse requests for a licence.
Sometimes high fees asked for by copyright owners can also act as a barrier.

Licensing best practices

Some of the best practices we recommend related to licensing include:

Getting everything in writing.
Ensuring the creator, copyright owner or donor you are negotiating with understand the implications of the licence you are arranging.
Keeping your licences flexible such as using technology neutral language, avoiding exclusive lists of example uses, etc.
Avoid accepting terms that force libraries and archives to give up their rights under the Copyright Act.
Consider ensuring that your licence includes any downstream rights you would like to grant to the public.

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