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As Australia ramps up its isolation policies in response to Covid 19, many libraries and archives are considering what they can do to keep supplying clients even after their doors are closed to the public.
The good news is that Australia’s Copyright Act 1968 gives libraries, archives, museums and galleries clear rights to provide remote access to materials in many circumstances. The unique distance challenges of our country mean that the right to remote supply has always been part of our national copyright policies, and has been included in major revisions and updates for the digital age.
Below we answer some of the most common questions about when and how cultural institutions can provide access to material in their collections remotely.
Even outside the current health crisis Australian libraries and archives can:
- supply electronic copies of 10%, one chapter or one article of works to clients (whether onsite or remote) for research and study, or to other institutions.
- supply electronic copies of entire works to clients for research and study, or to other institutions, if those works aren’t commercially available.
- supply electronic copies of unpublished or audiovisual materials, or materials that are to be used for purposes other than research and study, to clients as long the supply will not harm the market for the work or the interests of the owner. Decide each request on a case by case basis, and consider taking steps to limit any harm to copyright owners where possible.
- consider digitising materials in their collections that are orphaned, or old and no longer commercially available. Assess digitisation projects on a case by case basis, and consider taking steps to limit any harm to copyright owners where possible.
You may also be able to supply remotely under the education or disability access exceptions. See links below for more detail.
Can we supply material electronically to a remote client for research and study?
Australian libraries and archives have a direct exception that allows them to supply electronic copies of material in their collection to clients for research and study – the document delivery exception in s49 of the Copyright Act.
This exception allows you to supply published literary, dramatic, artistic and musical works (but not unpublished or audiovisual material) in response to a request by a client, whether offsite or onsite, as long as it is for the purpose of research or study. This includes electronic copying and supply (eg via email or posting it to a secure cloud server).
How much you can copy depends on the work. If the material is commercially available (ie the client could buy it themselves in a reasonable time at an ordinary commercial price) you can only copy 10 percent or one chapter, whichever is larger. For journals, this becomes one article from each edition, unless the articles are on the same topic of research.
Importantly, if the material is NOT commercially available, you can copy and supply larger amounts, up to and including the entire work. This is intended to allow people to remotely access whole copies of works that are rare or out of print, and can’t be obtained anywhere but the library.
A work is commercially available if it is purchasable new, as a separate publication, within a reasonable time for an ordinary commercial price. This includes being able to purchase it online or in an electronic form, but does not include second hand copies, or sales of other editions of the same work. It also doesn’t include bundled works eg if you are required to subscribe to a service to access the work. How long it will take to get the copy can also be taken into account – so if the current restrictions start affecting the ability to buy books from overseas, that could be considered in deciding if something is “commercially available”.
The client request for the material can be in writing or verbal, as long as the library keeps the appropriate record. It must state that the material will be used for research or study – however, this includes personal research and study and does not require people to be a professional researcher or enrolled student. For example, material can be provided for family history research.
For more information on the process requirements, see our FAQ on document supply.
Can we supply material electronically to other institutions?
There is a very similar exception to the above that allows you to provide materials directly to other institutions – the interlibrary loan exception (s50). This can be either in response to a request by their client under s49, or because the institution wants to include the material in their own collection.
Once again, this applies to all published literary, dramatic, artistic and musical works, and includes electronic supply (eg scanning a copy and sending it via email). How much you can supply follows the same rules as above ie for works that are commercially available you can supply 10 percent, one chapter or one article; for works that aren’t commercially available you can supply more, including the entire work. This is a good way, for example, for institutions to share local histories and other works with small print runs, which might only exist in one collection.
Can we supply unpublished or audiovisual materials?
Materials that aren’t covered by document supply or interlibrary loan, such as unpublished materials, films or sound recordings, can often still be supplied to remote clients under the libraries and archives flexible dealing exception (s200AB).
This flexible exception essentially allows staff to do anything that is part of maintaining or operating the library and archive, as long as the use:
- isn’t commercial (though cost recovery is fine);
- does not prejudice the copyright holder;
- does not compete with the market for the work; and
- is a special case.
This exception has to be assessed on a case by case basis using the above test. But it is commonly used for offsite supply of materials in circumstances that are similar to document delivery and interlibrary loan, but fall just outside it. So it is likely to cover supplying unpublished materials to a client for their research and study, or supplying films or sound recordings materials that aren’t commercially available. The key difference is that you should consider the potential impact of the supply on the copyright owner – so if a film is available to purchase you probably shouldn’t supply it. You should also consider whether there is anything you can do to minimise the harm to copyright owners, such as supplying non-editable or lower resolution copies of material.
We have a whole guide to s200AB that can help you work out whether your use is covered by the exception, including case studies and examples, on our website.
Can we supply material electronically for purposes other than research and study?
Again, this is a circumstance in which you might want to consider using s200AB. So, for example, if a person wants a copy of a newspaper article to display at their grandfather’s funeral, this probably isn’t considered research and study. However, it is probably ok under s200AB. Similarly, supplying copies of recipe books that are no longer commercially available for someone’s home use will usually be ok.
What about electronic resources and ebooks?
Technically these exceptions do apply to electronic resources. The main difference is that for materials that have been obtained in electronic form you can supply 10 percent of the words rather than the pages, and you always have to do a commercial availability test when supplying them under interlibrary loan.
However, in reality most resources you obtain in electronic form are likely to be covered by a licence, which may or may allow remote supply. While there is some legal grey area about whether contracts can overrule exceptions, best practice in the sector is to follow the licence as long as it is reasonable. So the first thing to do for remote supply of e-resources is to check the licence.
Do I need to use security measures to “lock” electronic files I am sending?
There are no specific format or security requirements for supply of material under the Act. In particular, materials that are being supplied under the document delivery or interlibrary loan exceptions can be supplied as an ordinary PDF and do not need to be locked or time limited.
For materials you are providing under s200AB, you might want to consider locking or time limiting the files if you think that this will reduce any harm to the copyright owner. However, if the material is an orphan work (ie you can’t identify the copyright owner) or out of print, there is unlikely to be any harm even from an unlocked file.
Can we upload materials to online collections?
Material copied under the document delivery and interlibrary loan exceptions must be supplied directly to the client. This includes different forms of electronic delivery, such as emailing it or uploading to a cloud service and providing a link – but it does not include uploading the material to a publicly accessible website or online collection.
However, the good news is that s200AB can be used to post material online for the general public. In fact, creating online collections is probably the most common use of s200AB. It is particularly common for s200AB to be used to digitise material that is still in copyright but is either orphaned (ie has an unknown copyright owner); or is older and no longer commercially available, and it would be difficult/impossible to obtain permission from the copyright owner. Some of the projects that have been enabled by s200AB include Australian Newspapers Online, AIATSIS’s digitisation of the Dawn publication, and the War Memorial’s digitisation of soldiers’ letters.
The same s200AB test applies here as above – make sure that your use is not commercial, and consider whether it will harm the copyright owner. However, when using s200AB to digitise material, it is particularly important to consider whether there are any steps you could take to limit potential harm to copyright owners. For example, you may only want to upload low resolution copies of orphan photographs, limit downloads or copying, or include a notice that asks people to come forward if they are the copyright owner of the material.
One important rule – you should also always have a clear takedown policy in case the copyright owner does come forward and ask for the material to be removed. As an example of what might be reasonable, NSLA has a guide to its takedown policy here.
Who can use these exceptions?
These exceptions apply to all libraries that are open to the public, including school libraries, universities and research libraries that are only open on request. It can even include corporate libraries, as long as they make their collection available to others outside their organisation eg by participating in schemes like interlibrary loan.
They also apply to all non-profit archives, even if they aren’t open to the public. This is a very broad definition, and includes museums, galleries and even local history collections.
What about streaming storytime?
Onsite storytimes are covered by s200AB of the Copyright Act, and in some circumstances this may also cover storytimes being streamed online (eg where the book is an orphan work).
But the good news is that Books Create Australia has come up with a solution to allow streaming of more popular and contemporary works. This initiative aims to champion Australian writing, and brings together the Australian Booksellers Association (ABA), the Australian Library and Information Association (ALIA), the Australian Publishers Association (APA) and the Australian Society of Authors (ASA). They have announced a special arrangement for library storytimes during the COVID-19 outbreak, which allows virtual storytimes to be held by libraries for the duration of the pandemic, whether by streaming or uploading a video.
You can find out the details of the initiative here.
When else can I supply material remotely?
There are very broad exceptions in the Copyright Act for supplying material to people with disabilities which would apply to remote supply. For more detail on them, see Making Content Accessible : A Guide to Navigating Australian Copyright Law for Disability Access.
Don’t forget public domain material
Finally, it’s important to remember that copyright only lasts a certain amount of time. Material that is in the public domain (ie no longer protected by copyright) can be freely shared and uploaded without any limitations. So you are entirely free to create online collections, ebook archives, video streams or anything else you can think of from public domain material in your collection.
Normally copyright will last for 70 years after the death of the author of a work in Australia. However, the rules change for different materials and can get complex. You can find some good rules of thumb on our website here, or a detailed table from the government’s own Copyright Branch here.
And while it isn’t technically the public domain, you can also find some great materials that are free and legal to use under Creative Commons licences. This includes storybooks, research articles, music, and even whole novels. Check out the Creative Commons website for more information.
Still have questions?
While the ALCC does not provide legal advice, we’re always happy to receive requests for information about copyright from libraries and archives, and point you to a wide range or online resources that can help you understand your rights and responsibilities under the law.