The libraries and archives exceptions

You likely know of document delivery or document supply, but in section 49 of the Copyright Act the concept is referred to as Reproducing and communicating works by libraries and archives for users. The provision allows libraries and archives to reproduce and communicate articles in periodicals and published works that users request for the purpose of research and study. Importantly, users cannot make requests for copies of audio-visual material such as sound recordings and films.

The provision allows libraries and archives to reproduce and communicate published written, artistic or musical works for users who have requested a reproduction of content in writing and who have made a declaration, signed by them, that they:

• Require the reproduction for the purpose of research and study
• Will not use it for any other purpose.
• Have not been supplied with a reproduction of the same material in the past.

The requirement that such a declaration be in writing does not apply where the client is in a location not near the library or archive, but they must also include in their declaration a statement to the effect that because of their location they would be unable to provide a written declaration soon enough to enable reproduction and supply before the time by which they need it.

As long as the librarian or archivist handling the request is satisfied that the nothing in a declaration is untrue they may reproduce the material and supply it to the user. This could be making a photocopy of material or emailing a digital scan of it.

Importantly, the article or published work requested must be in your collection or another library or archive’s collection (in such situations an interlibrary loan request is issued to the other library or archive requesting a reproduction of the material to fulfil the document delivery request). And, where the request is for a published work, the requested must be for a reasonable portion of a published work. The quantum of material that is considered a reasonable portion for the purposes of section 49 are the same as those for fair dealing for research and study, namely:

• Reproducing one article from a periodical.
• 10% of the total pages in a published edition of a literary, dramatic or musical work
• Or 10% of the total number of words in a published literary or dramatic work in electronic form.
• Or a single chapter if the work is divided into chapters.

If more than a reasonable portion has been requested you must be satisfied that the material to be reproduced cannot be obtained within a reasonable time at an ordinary commercial price and that it is not available commercially as a separate item.

Additionally, when executing a document delivery request a library or archive should:

• Include a copyright notice that informs the recipient that any other dealings with the reproduction of the material may infringe copyright, unless that dealing is considered an act not constituting an infringement of copyright in works.
• Destroy any electronic copy made of hardcopy material supplied to a client to fulfil a document delivery request as soon as practicable after the electronic reproduction has been communicated to the client.
• Ensure any copying fee charge for making a reproduction and supplying it does not exceed the cost to make and supply the reproduction.
• Retain declarations submitted as part of a document delivery request for at least four years after making the reproduction of the material to which the declaration relates. This time period is specified in regulation 127 of the Copyright Regulations 2017.
• Allow copyright owners and their agents (e.g. Copyright Agency) to inspect retained declarations related to a document delivery request. If a copyright owner or their agent must give you a minimum of seven days notice of their intention to inspect retained declarations.

For more information on the practical use of document delivery and interlibrary loan we recommend consulting the Libraries Australia Document Delivery manual.

Like document delivery, what you likely know of as interlibrary loan is referred to as Reproducing and communicating works by libraries or archives for other libraries or archives in the Copyright Act and is outlined in section 50. The provision allows libraries and archives to reproduce and communicate articles in periodicals and published works to another library for inclusion in their collection or to supply a user of another library who has made a document delivery request of that library. But, as with document delivery, interlibrary loan requests cannot be for copies of audio-visual material such as sound recordings and films.

The requirements of interlibrary loan are very similar to those of document delivery:

• The article or published work requested must be in your collection.
• Requests must be for a reasonable portion of a published work only. The quantum of material that is considered a reasonable portion for the purposes of section 50 are the same as those for fair dealing for research and study, namely:
  • Reproducing one article from a periodical.
  • 10% of the total pages in a published edition of a literary, dramatic or musical work
  • Or 10% of the total number of words in a published literary or dramatic work in electronic form.
  • Or a single chapter if the work is divided into chapters.
• If more than a reasonable portion has been requested you must be satisfied that the material to be reproduced cannot be obtained within a reasonable time at an ordinary commercial price and that it is not available commercially as a separate item.
• A copyright notice must be included that informs the recipient that any other dealings with the reproduction of the material may infringe copyright, unless that dealing is considered an act not constituting an infringement of copyright in works.
• Any electronic copy made of hardcopy material supplied to a client to fulfil a document delivery request is destroyed as soon as practicable after the electronic reproduction has been communicated to the client.
• Any copying fee charge for making a reproduction and supplying it must not exceed the cost to make and supply the reproduction.
• Declarations submitted as part of a document delivery request are retained for at least four years after making the reproduction of the material to which the declaration relates.
• If a copyright owners and/or their agents (e.g. Copyright Agency) request to inspect retained declarations related to a document delivery request the library or archive must enable that inspection to occur. If a copyright owner or their agent must give you a minimum of seven days notice of their intention to inspect retained declarations.

For more information on the practical use of document delivery and interlibrary loan we recommend consulting the Libraries Australia Document Delivery manual. We also recommend citing the Australian Library and Information Association’s Interlibrary Resource Sharing Best Practice Guidelines 2019.

Changes that came into effect with the commencement of the Copyright Amendment (Disability Access and Other Measures) Act 2017 (Cth) simplified the rules related to preservation. Under section 113H a library or archive does not infringe copyright by using material if that use is for the purpose of preserving their collection or the collection of another library or archive.

For preservation there are no limits on:

• The material that can be preserved – Anything in the collection can be preserved – books, photographs, audio-visual material or anything else protected by copyright. It does not matter if the material has been published or is unpublished. It doesn’t matter if the material is historic or contemporary.
• The uses that can be made – As long as it is for the purpose of preservation you can make any use including reproducing and copying material, emailing copies to others, storing copies of it on physical hard drives and uploading copies to cloud services.
• The media or format used – Materials can be reproduced in the same format they were originally in or converted to any other format. Although this should be in line with your library or archive’s preservation policies and procedures.
• The number of preservation copies made – You can make multiple copies of the material in one or more formats. Although this should also be in line with your library or archive’s preservation policies and procedures.
• The person making the preservation copies – The exception allows a library or archive officer to preserve their organisation’s collection or the collection of another library or archive. This means that staff with specialist skills and/or access to specialist equipment can make preservation copies for other organisations.

For the purposes of preservation, best practice is encouraged. The Explanatory Memorandum for the Disability and Other Measures Act identifies, for example, preservation at the point of purchase. Libraries and archives do not have to wait for the material to become “old” or deteriorate before preserve it. Likewise, the Explanatory Memorandum makes it clear libraries and archives to not have to retain the source material. There may be legitimate circumstances in which it is appropriate to destroy the original copy e.g. high costs to store the material or safety concerns.

The requirements of preservation are straightforward:

• The material being preserved must be in your collection or another library or archive’s collection.

• The library or archive officer must be satisfied that a copy of the material in the preservation format needed (consistent with preservation best practice) cannot be obtained the within a reasonable time at an ordinary commercial price. If you can purchase a copy in the format you need from a commercial vendor you should do so rather than creating your own copy. But the commercially available copy must be in the exact format needed for preservation e.g. an electronic version of a book available in a proprietary ebook format does not prevent you from making a copy of the work in an open document format (if that is in line with your library or archive’s preservation policies and procedures). What this limit aims to do is ensure institutions do not rely on a preservation copy instead of purchasing a replacement copy for material that is still commercially available but the copy in the collection has become old or damaged.
• For the purposes of determining if the needed format can be obtained within a reasonable time at an ordinary commercial price the follow matters apply:
  • The material must be available to buy new. The availability of second-hand or aftermarket copies does not mean it can be obtained.
  • The material available must be what you need e.g. if you want a single chapter of a book and that chapter is only available for sale as part of a whole ebook that does not meant it can be obtained.
  • When determining if material is available at an “ordinary commercial price” benchmark the cost against the cost of similar works.
  • When determining if material is available in a “reasonable time” you can take the client’s needs into consideration e.g. a student who needs material for a course they are currently enrolled in is not the same as a casual library user wanting to read an out of print book.
  • Take reasonable steps to find the material but you don’t have to conduct an exhaustive search.

Section 113J of the Copyright Act allows a library or archive to make available original material held in a collection for research carried out on-site at the library or archive or on-site at another library or archive. Original material includes manuscripts, letters, diaries, home recordings, original artworks and other types of material. You can make use of the material in any way necessary to provide access to it to the researcher. This could be reproducing and copying the material, emailing copies to them, storing copies of it on physical the hard drives of computers on-site at the library or archive premises or playing a film or sound recording on-site.

The requirements of on-site research are:

• The original material must be in your collection or another library or archive’s collection.
• The library or archive holds the material in its original form.
• The library or archive must take reasonable steps to ensure a person who accesses an electronic version made available on-site does not infringe copyright e.g. by displaying a copyright warning notice on or in close proximity to copying machines.

Changes that came into effect with the commencement of the Copyright Amendment (Disability Access and Other Measures) Act 2017 (Cth) were designed to simplify the disability access provisions in the Copyright Act in response to Australia signing the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (Marrakesh Treaty). What was novel and significant about the Marrakesh Treaty was that it was the first of its kind to ever to focus on user rights rather than copyright owners.

The former Disability Statutory Licensing schemes and the former section 200AB(4) were replaced by a fair dealing for the purpose of access by persons with a disability (outlined in section 113E), together with this provision – Use of copyright material by organisations assisting persons with a disability (outlined in section 113F). Under section 113F a library or archive does not infringe copyright by using material if that use is for the purpose of assisting one or more persons with a disability to access the material in a format they need.

Similar to the preservation provision, for disability access there are no limits on:

• The material that is being made accessible – The new exception goes further than the former statutory licensing scheme because it applies to any material. Anything in the collection can be made accessible – books, movies, computer programs, audio-visual material or anything else protected by copyright. It does not matter if the material has been published or is unpublished. It doesn’t matter if the material is historic or contemporary.
• The uses that can be made – As long as it is for the purpose of disability access you can make any use including reproducing and copying material, emailing copies to others or making copies of it available on physical hard drives or thumb drives.
• The media or format used – Materials can be reproduced in any format that provides access.
• The type of disability – The exception can be used by any person with a disability – not just print and visual disabilities – or any person or organisation assisting a person with a disability that prevents them from accessing copyright material. This is because the amendment Act did away with a definition of disability in the Copyright Act, and instead the Act now points to the definition of disability in the Disability Discrimination Act 1992 (Cth) which covers any form of disability.
• The party making the accessible format – The provision is very flexible in relation to who can make accessible formats. It allows for access to be provided by an organisation assisting the person with a disability itself, or by someone acting on its behalf, or by another body or person, including corporate entities.

Together this represents a positive and much-needed move to a client-focused approach to disability and copyright – it emphasises that we should be striving to provide access to our collections it in an equitable way for people with disabilities consistent with a person without a disability, including a focus on the format that the client needs to access and enjoy the material.

Also the Explanatory Memorandum for the Act makes it clear that there is no longer a need to destroy accessible format copes. It is now possible for organisation to build a collection of accessible material. And organisations can share that collection with others. And the Explanatory Memorandum also makes it clear that organisations relying on the provision can import and export accessible formats.

The requirements of disability access are:

• The use must be for the sole purpose of assisting one or more persons with a disability.
• The library or archive officer must be satisfied that a copy of the material in the accessible format needed cannot be obtained the within a reasonable time at an ordinary commercial price. If you can purchase a copy in the format you need from a commercial vendor you should do so rather than creating your own copy. But the commercially available copy must be in the exact format needed to provide access for the person with the disability e.g. content available in braille is not accessible to a person who does not read braille. What this limit aims to do is ensure institutions purchase commercially available accessible formats rather than creating your own copy.
• The same matters that come into play when determining if a preservation format can be obtained within a reasonable time at an ordinary commercial price apply when determining if an accessible format can be obtained, namely:
  • The material must be available to buy new. The availability of second-hand or aftermarket copies does not mean it can be obtained.
  • The material available must be what you need e.g. if you want a single chapter of a book and that chapter is only available for sale as part of a whole ebook that does not meant it can be obtained.
  • When determining if material is available at an “ordinary commercial price” benchmark the cost against the cost of similar works.
  • When determining if material is available in a “reasonable time” you can take the client’s needs into consideration e.g. a student who needs material for a course they are currently enrolled in is not the same as a casual library user wanting to read an out of print book.
  • Take reasonable steps to find the material but you don’t have to conduct an exhaustive search.
• The provision is only available to educational institutions and non-profits with a ‘principal function’ of assisting people with a disability. However, the Explanatory Memorandum makes it clear that it doesn’t have to be the only ‘principal function’ of the organisation. And it provides libraries and archives as examples of institutions that are likely to satisfy this test.

For a practical guide on the application of the Use of copyright material by organisations assisting persons with a disability provision and the fair dealing for the purpose of access by persons with a disability we recommend consulting the Australian Inclusive Publishing Initiative’s Making Content Accessible: A Guide to Navigating Australian Copyright Law for Disability Access.

The exception for libraries and archives for administration of the collection is lesser-known, but it can be a very useful provision for institutions. Outlined in section 113K, the exception allows libraries or archives to use any material if the use is for purposes directly related to the care or control of the collection without infringing copyright.

Examples of administration uses that may be within the scope of the provision include:

• Copying and communicating thumbnail images of book covers or snippets of information describing the material taken from the back of a book or website in a library or archive catalogue.
• Making reproductions or copies as part of training for library staff in preservation and restoration of old or damaged materials.
• Undertaking recordkeeping or reporting activities for the library or archive.

Libraries and archives are allowed to reproduce or communicate the following material to a person for the purposes of research:

• An unpublished artistic work or an unpublished manuscript of a literary, dramatic or musical work held in a library or archive’s collection, and whose author has been dead for more than 50 years (outlined in section 51(1)).
• An unpublished sound recording or film held in a library or archive’s collection, where more than 50 years has passed since the making of the sound recording or film (outlined in section 110A).
• An unpublished thesis or similar work held in a library of a university or other similar institution may also be reproduced or communicated by that library for research or study purposes (outlined in section 51(2)).

Additionally, for unpublished artistic works or unpublished manuscripts of literary, dramatic or musical works in a collection, and whose author has been dead for more than 50 years, a library can also reproduce or communicate the work for a person who wants to publish the work. This is only for works though; there is no equivalent provisions where a client wants to publish unpublished films and sound recordings made over 50 years ago.

Section 200AB of the Copyright Act was introduced in 2006 to provide a flexible exception to enable copyright material to be used for certain socially beneficial purposes. It has become the default exception for institutions providing public access to orphan works.

The requirements for a flexible dealing are:

• That the intended use does not fall within the scope of any other exception.
• That the intended use is noncommercial. Cost recovery related to the use is permissible.
• That the intended use passes the ‘three step test’, which requires that the use:
  • Will not prejudice the copyright holder.
  • Will not conflict with normal exploitation of the work or other subject-matter.
  • Is a ‘special case’. But the requirement that something be a special case is not a high bar.

When using section 200AB in practice there are a number of activities you could undertake:

• Assess if the intended use is within the scope of section 200AB.
• Assess the level of risk to the library or archive if the intended use was made. While most library and archive uses are low your assessment of the risk should be mindful of your institution’s appetite for risk.
• Determine if there are opportunities to reduce any potential harm to the copyright owner or mitigate the risk to the institution. Strategies may include:
  
  • Providing as much of the detail that you would typically include in an attribution as possible.
  • Adding notices alongside orphan works that indicate that the copyright owner could not be identified, or was unable to be contacted.
  • Publishing the material at low resolutions.
  • For large collections attempt to secure permissions from a reasonable sample of the collection.
  • Ensure that your provide details of your notice and takedown procedure in case a copyright owner comes forward.

But remember that for most intended uses you will not be able to achieve risk elimination and you shouldn’t be trying to.

Although every decision whether an intended use constitutes a flexible dealing should be made on a case by case basis, there are a number of scenarios that are commonly considered a flexible dealing in the galleries, libraries, archives and museums (GLAM) sector. A few examples of uses that are likely to fall within section 200AB include:

• Format shifting old collection materials, such as video cassette tapes, to ensure they remain accessible.
• Supplying a reasonable portion of audio-visual material to offsite clients for research and study.
• Supplying materials that aren’t commercially available (applying the commercial availability test) to clients for private use.
• Children’s story time events.
• Use of material in exhibitions, including playing clips of films.
• Digitising (reproducing and communicating) material when a copyright owner cannot be identified i.e. orphan works.
• Translating of materials for underserved clients.

For a practical guide on the application of the flexible dealing provision we recommend consulting our guide A User’s Guide to the Flexible Dealing Provision for Libraries, Educational Institutions and Cultural Institutions. The guide provides more comprehensive information about section 200AB and its practical uses.