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Copyright licences are the most common way rights to use copyright-protected material is given.
Copyright licensing is one way to use material without infringing. 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. Licensing is a common way for copyright owners to grant permission to others to use their copyright material on specified terms.
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 (i.e. the terms of the licence).
Common terms in a licence relate to:
- the permitted uses – what of the copyright owner’s exclusive rights the licensee can make under the licence.
- the duration – how long the licence lasts for, which could be a specified period or the full duration of the material
- geography – the country or territory to which the licence applies to
- jurisdiction – the country’s legal system where disputes will be heard if dispute arise
- exclusivity – whether the uses granted by the licence are permitted on an exclusive or non-exclusive basis.
Types of copyright licences
There are a number of types of licences you can secure to allow reuse of copyright-protected material, including:
Assignment of copyright
An assignment of copyright transfers the ownership of copyright to another party who then becomes the copyright owner. An assignment could be granted by the original author or maker to another party, or by a subsequent copyright owner to a new copyright owner. To be valid, an assignment of copyright must be in writing and be signed by the assignor. Sometimes clauses assigning copyright are included within a Copyright Deed, Deed of Gift, deposit form or a similar document.
Direct licences
A licence is a permission granted by a copyright owner to make use of copyright-protected materials on specified terms. A licence can be a written contract (i.e. licence), or it may be included within a Copyright Deed, Deed of Gift, deposit form or a similar document. But, a licence does not have to be in writing, but it is obviously easier to evidence if it is.
Blanket licensing
Anything that is not a direct licence is likely a blanket licence. If direct permission from the copyright owner is one-to-one, then blanket licences are one-to-many. They provide many licensees with permission to undertake specific uses of a body of copyright protected material on pre-set terms.
Common types of blanket licences include:
- Licences included in the terms of use or a copyright statement on a website
- Standardised commercial licensing
- Creative Commons licences, F/LOSS (Free/Libre Open Source Software) licences and other open content licences
- Voluntary collective licensing arrangements (typically managed by a collecting society)
- Statutory licences (also typically managed by a collecting society).
Each are outlined in more detail below.
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.
Creative Commons and other open content licences
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 Free/Libre Open Source Software (F/LOSS)licences 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 pay 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 administers 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
There are often imbalances in the ability to negotiate a copyright licence. 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
Best practices in relation to copyright licensing in libraries and archives include:
- Being mindful of imbalances in the ability to negotiate a copyright licence
- Getting everything in writing so the terms are clear for everyone involved
- 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 by using technology neutral language, avoiding exclusive lists of example uses, etc
- Avoiding terms that force libraries and archives to give up their rights under the Copyright Act
Additionally, it is also worth considering how you would like your users to be able to make use of the material and ensuring that your licence includes those downstream rights so you are able to sublicence certain uses to the public.