Copyright implications for Family History Societies

Copyright is the law relating to copying and protects the work of authors and creators of works so they can receive remuneration for the use of their work. Copyright law provides a guide to how much of a work can be copied and when it is permissible to copy the whole of a work. Copyright covers materials in a variety of formats: books, journals, newspapers, films, videos, audio recordings, computer programs, artistic works etc.

The owners of copyright works may institute legal proceedings for breach of copyright by others. Such action may result in compensation being paid to the copyright owner for the infringement. Further infringement may be a criminal offence that may be prosecuted in the Federal Court and penalised by fines. The Commonwealth Crimes Act imposes a penalty of up to three years imprisonment on persons who conspire to commit offences against a law of the Commonwealth, including the Copyright Act.

The Act covers literary works, artistic works, musical works, dramatic works, films, sound recordings, broadcast signals, published editions, composite works, and compilations. A work must be original to qualify for copyright protection and there must be a connecting factor with Australian law. For example, the author/creator must be a citizen or resident of Australia or of a country to which the Act extends, or the work must be first published in one of those countries.

Under Australian Copyright Law, copyright protection is automatic, and no symbol is required. For Artistic works (such as paintings, drawings, cartoons, sculpture, craft work, photographs, maps and plans), copyright lasts from the time the material is created until 50 years after the year of the creator’s death. An original work of authorship is assumed to be protected regardless of the format.

There are a number of specific issues for FHS to consider.

There is no need to seek permission to photograph a building. Although a building is protected by copyright, a special exception in the Copyright Act allows buildings to be photographed without permission.

The period of protection for photographs varies according to the type of material. Photographs taken before 1 May 1969 are protected for 50 years from the end of the year they were taken. Photographs taken after 1 May 1969 are protected for 50 years from the year of first publication (that is, when copies are first made available to the public). Other works are generally protected until 50 years after the year of the author’s death.

There may be two copyrights involved in an artistic work featured in a book: copyright in the artistic work (for example, a painting or map) and copyright in the photograph or image of the artistic work. You will generally need permission from the owner of copyright in the artistic work unless the copyright has expired. It is unlikely you need permission in relation to the photograph, if the photograph depicts nothing but the artistic work and is indistinguishable from other photographs of the same work. Otherwise, you will generally need permission from the owner of copyright in the photograph.

Scanning an image to produce a digitised version will usually reproduce the image, and thus requires permission (unless the copyright has expired). You will also generally need permission to produce a new image by altering the digitised image, if an important part of the first image is recognisable in the new image.

In some cases, an organisation owns copyright of a work in its collection, and you need their permission to reproduce the work. In most cases, the copyright is owned by someone else, or has expired.

You may draw, paint, photograph or film a sculpture or work of artistic craftsmanship that is publicly and permanently displayed (ie not a temporary exhibit) without permission. This means you are entitled to photograph headstones and like monuments. This does not apply to other public art, such as murals.

Libraries are also permitted to copy manuscripts and original artistic works for preservation against loss or deterioration. Published works may be copied to replace items which have been lost, stolen, damaged or deteriorated. This also applies to sound recordings and films.

Judicial proceedings or legal advice can be freely copied.

Libraries and archives are able to make copies for users who require the copies for their research or study. Specific declarations need to be made by the person making the request before the copying can be carried out. Libraries are permitted to make copies for other libraries or archives.

A volunteer indexer will normally hold the copyright and not the FHS for whom they may have prepared the index unless an appropriate agreement has been entered into between the parties.

To obtain a legal copy of material protected by copyright:

  1. Check to see if copyright has expired. Copyright lasts for 50 years from the end of the year in which the author died, regardless of whom owns the copyright. If a work is unpublished at the author’s death, the copyright lasts for 50 years from the end of the year in which the work is first published. Copyright may last indefinitely if a work is unpublished.
  2. Obtain permission from the copyright owner. The owner of a literary, dramatic, musical or artistic work is usually the author of that work. The copyright owner of a published edition of a work is the publisher. If a work is created by or under the direction or control of the Commonwealth or a State, the Crown owns copyright. There are agencies which represent the rights of owners of copyright material. These societies license individuals and organisations to make copies or copyright material and distribute the license fees to the owners of the works copied. For example a FHS library should have an agreement with a copyright agency for permission to copy material used for the educational purposes of the FHS and membersí research. For this agreement the FHS would pays a fixed amount per member. This allows the FHS to copy (within the bounds of fair dealing), material for distribution to members. Collectives of copyright owners include:
    • Copyright Agency Ltd (CAL)
    • Audio-visual Copyright Society Limited (AVCA)
    • Australasian Performing Right Association (APRA)
    • Phonographic Performance Company of Australia (PPCA)
    • Australasian Mechanical Copyright Owners’ Society (AMCOS)

There is no infringement of copyright if the amount of the total work to be copied is within the bounds of fair dealing and it is being copied for the purpose of research and study.

Copying of a reasonable portion of a literary, dramatic or musical work is deemed to be fair. The act defines a reasonable portion as 10% of the whole work if the work is longer than 10 pages or up to one chapter if the work is divided into chapters. You may copy up to the whole of an article in a journal or periodical, or more than one article in the same issue of a periodical, if they are of the same subject matter. Fair dealing must be assessed with regard to the following factors:

  • the purpose and character of the dealing,
  • the nature of the work or adaptation,
  • the possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price,
  • the effect of the dealing on the potential market for, and/or
  • copying may also be carried out for the purpose of criticism or review or the reporting of news. In these cases appropriate acknowledgement of the author, title or description of the work must be made.

If the published work is out of print, is not obtainable at an ordinary commercial price within a reasonable time, and it is required for the purpose of research and study, the whole of the work may be copied.

Summary for display by the photocopier

Photocopying of books, periodicals, journals, newspaper, artistic works, music, plays, scripts, graphs, directories and other literary, dramatic, musical and artistic work is prohibited under the Copyright Act except where

  • Copyright has run out.
  • Copyright owner has given permission or licence
  • Copy is required for research or study, criticism or review, reporting news or judicial proceedings.

Photocopying may be permitted under fair dealing provisions:

  • Published work is out of print and not obtainable at ordinary commercial price (for research and study use only).
  • Unpublished thesis held in a library – required for research and study.
  • Single or multiple copies are required for educational purposes. (Only where agreements are in place with a collection society)

Under the Australian Copyright Act, users requesting copies of material from libraries must provide the library with a written declaration stating they require the copy for research or study.

Who holds copyright?

The owner of copyright in a work is usually the author, or creator of the work. However agreements with publishers may establish them as the owner of the work. In the case of ghostwriters, where the ghostwriter writes under another person’s name to imply that the other person wrote the work, it is likely that the ghostwriter is the owner of copyright in the work.

Where a work is created by more than one author, each author owns an indivisible share of the copyright in the work. No one author may exercise rights in respect of the work without the consent of the other authors.
If a work is created by an employee in the course of employment, the employer will usually be the first owner of copyright. Exceptions to this may be found where agreements are in force between the employer and employee or where creating the work was not part of the person’s job.

Other less important issues for FHS

Computer software, for the purposes of the Copyright Act, is treated as a literary work.

The reproduction of computer programs is prohibited by the Copyright Act except where copyright has expired:

  • the copyright owner has given permission or a licence to copy. The terms and conditions of the permission or licence must be clearly understood and followed.
  • where the program is public domain. Care is needed as some public domain software have conditional licences and not a general waiver of rights.
  • A back up copy is made (only for use as back up). This may be excluded by the copyright owner in the licence.

There are other conditions which may apply as the Copyright Act covers only basic copyright. The licence may only apply to specified persons or classes of persons, for example the students of a particular subject or specified administrative staff; to specified sites within the institution; to specified hardware and for specified use, eg education as distinct from administration.

In order that institutions can copy from radio and television broadcasts for educational purposes, agreements have been signed between institutions and the Audio-Visual Copyright Society (AVCS). AVCS is a collection society which collects royalties according to the copying carried out at each institution. Institutions are required to keep records as to the type of program and the duration of the copy and pay a set fee per minute.

Satellite transmissions are not covered by the Copyright Act as these are not defined as broadcasts.

Musical works are protected by the Copyright Act from unauthorised copying. They are subject to the limitations of fair dealing which have previously been covered. Music is a little different in that the copyright covers the lyrics, the music and the score.

Playing music in public by use of a radio requires permission from the owner of copyright in the music. For example, a shop for example which has a radio playing will need an APRA licence. Technically any recorded music played for any reason in a FHS library is subject to this condition.

Playing music at premises where people reside or sleep does not require permission. eg owners of guesthouses, hotels, motels etc. are able to play live or pre-recorded music (through a sound system or by radio) without paying a licence fee to APRA or PPCA.

In 1989 the Act was amended to legalise home taping of published records and cassettes. Owners of copyright in published music are now recompensed by the collection of a royalty on the sale of blank audiocassette tapes. The royalty is paid by wholesalers or importers of blank tapes to a collecting society approved by the Federal Attorney General. It is now possible for you to legally make copies of published sound recordings on private premises for your private and domestic use. The copy can be made from a record, cassette or off-air from radio or television.

Today we have books and journals which are able to be read and downloaded from electronic format. The Act as it currently stands is inadequate to deal with infringements of copying of material stored in this way.

Under the Australian Copyright Act, users requesting copies of material from libraries must provide the library with a written declaration stating they require the copy for research or study. This requirement creates a problem when libraries are moving to electronic request and delivery systems. For the electronic library to become a reality, the law of copyright will need to be amended so that the request and delivery of published documents electronically is legally possible.

As far as the copyright law is concerned, there is no distinction between a journal distributed electronically and one distributed in paper.

Press Clippings and Cartoons are two forms of material which are often copied in organisations. Press clippings are usually copied from newspapers or magazines. The copyright act states that only one article from each issue of a periodical can be copied at the one time, and it must be for the purpose of research or study. More than one article can be copied if they are on the same subject matter. Multiple copying of press clippings is not permitted by the copyright act. Commercial businesses who conduct press-clipping services must obtain permission from the copyright owners of the material and pay royalties for the use of the material.

Cartoons are artistic works, and are subject to copyright. Reproduction of cartoons cannot be made without the permission of the copyright owner, since a copy of the whole of work is usually required.

Authors are faced with both legal and ethical obligations when considering the use of portions of another authors’ work. Within the bounds of what might constitute fair use, an author can use another author’s words providing they are in quotes and the original work appropriately cited.

Where an author wishes to reuse their own work, the author should first ascertain who owns the copyright. For example if the work to be used has been published or accepted for future publication by a publisher, it is likely the publisher owns the copyright.

Implications for NZ FHS

It would seem there is little variance between Australia and NZ copyright law. For a good summary of NZ Law go to Copyright Licensing Limited web site at: