Where you get a copyright clearance form is dependent upon the sort of material you need to obtain a copyright clearance from.

Firstly, you may even need to obtain a copyright clearance for material that has been produced for yourself.  You may have had something produced for yourself by a freelancer and in that case if you did not discuss the ownership of copyright or exclusive licence when the work was first commissioned or when it was completed then it is likely that you would need to obtain a clearance from that freelancer if you wish to reuse the material.

To get a clearance to use material from a book, the best place to start to your search to find the copyright holder would be with the publisher.  They can often have certain rights within an exclusive license to release certain licenses to other parties (including copyright clearances).  If they are not equipped with these rights, they would most certainly be able to point you in the right direction to contacting the author.

To start your search for the holder of copyright for material which has been published in a magazine or newspaper would be the owners of the magazine or newspaper.  Generally if material is produced by an employee then the copyright for this material is held by the employer.  A journalist would only own copyright for the purposes of photocopying and publishing books.  All other copyright is held by the owners.  The rules for material produced by a freelancer can differ, meaning that the publisher may be able to issue a clearance for use of the material on a website.

Who owns the copyright for artistic works can be quite detailed and not the same in every situation.  Sometimes the person who ask a photo to be taken owns the copyright but the negative is owned by the photographer.  On another hand, a sculpture or painting which is owned and displayed by a gallery but they may not necessarily own the copyright.  The best place to start to look for the copyright owner would be to contact the gallery or the publisher who should be able to provide some details in that regard.

In general, the copyright on a film or video would be owned by the production company or int he event of a foreign production company, the Australian distributor may have sufficient rights to grant clearances.  However, one must also look at the individual components of a film, eg music, script etc.  In this situation the production company should be able to advise you if they have sufficient rights to allow you to use a certain element of the film or if you need to go directly to the musician, playright etc.

Another complex area for copyright clearance is Music.  Generally, you would need several clearances to include music on a website, for the lyrics, music and recording.  APRA (Australasian Performing Right Association) and AMCOS (Australasian Mechanical Copyright Owners’ Society) can often give clearances required to use music on a website, however it is preferred that you contact the recording studio first.

Copyright of government material is, like most things with governments, quite complicated.  In summary, copyright on material published in print by the government is administered by the Commonwealth Copyright Association (CCA) and they are generally able to grant clearances.  The cost of these clearances depends upon the nature of the use.  Copyright for unpublished materials (memos, minutes etc), electronic and audio visual publications is usually managed by the actual government department who published it.  For clearances regarding High Court material you need to go directly to the High Court, while you need to go directly to your state court registry to seek materials produced by Federal and Family Courts (in WA this would be the Director General at the Dept of Premier and Cabinet).

While seeking clearances seems to be quite complicated on the face of it, it certainly has the potential to save lots of complication in the event you are questioned about your use of material.

The majority of information for this post was obtained from “Website and Copyright” a book first published in 2002 by the Australian Copyright Council and reprinted in 2006.

Amanda

In general terms, a copyright clearance is needed when you plan to make a “copyright use” of the works/material.

In more detail and in relation to website design, a “copyright use” is when you want to:

• make a different version from what is available or change the format of something, ie making printed material into a digital version or changing the format of a file (from mp3 to wav etc)
• want to alter or adapt the work
• need to upload the works to a server…this is considered reproducing the work
• Promoting your website and using any of its content in non-web related arenas, such as TV, radio or print media can be seen as reproduction of copyrighted material and would need a clearance
• Some caching is not an infringement on copyright (passive caching), however other caching is (active caching) and that would require a copyright clearance as it is considered a duplication/reproduction.  Passive caching is when the computer saves a temp file while surfing the web and active caching (also called mirroring) is when the server/ISP creates a mirrored copy of all or part of the copyright material.
• Visitors who use your site may print or save copies from your website and that is in fact a breach of copyright so it is important to consider a visitors usage of your site and whether you need to restrict access or include broader usage terms in your clearances.

References used for this post were:
Australian Copyright Council
Book – Website and Copyright, Publisher: Australian Copyright Council, Published: October 2002

Amanda

A copyright clearance is required for any time you wish to use a copyright covered work for your own use.  A clearance needs to include certain aspects to ensure that the document is legal and can be referred to in legal proceedings if required.

Broadly, a clearance needs to include the following things:

• Description of your planned use for the works;
• Are you seeking just a clearance or are you seeking exclusive/non-exclusive rights;
• The area in the world where you will use the material/works;
• The length of time the clearance is valid for;
• Conditions stipulated by the copyright owner;
• Payment details and a method of verifying ongoing payments;
• Do you need to attribute the works to anyone;
• Any alterations or additions which you intend to make and the permission for that;
• Details of mechanism to prevent unauthorized use
• Termination terms; and
• Arbitration or Mediation arrangements in the event of a dispute.

Description of planned use – the description needs to be as specific as possible so each party knows where they stand.  This can however be difficult as you won’t necessarily know the exact future use you may require.  One thing to consider, if you plan on making the works public, is if you are the first person to do so.  If so, you will also need to make allowance for that in the clearance.

Clearance or Rights – You need to consider whether you merely need “permission” to use the works or if you may need or like to have certain rights to the works.  Rights afford you some legal protection against unauthorized uses.

Area of the World – You need to include the areas of the world that you plan to use the material.  For most web developers you would most likely need a worldwide clearance, unless they are able to specify clearly that the work is only viewable from certain countries.

Conditions – This allows the copyright owner, or the requesting party, to include any special conditions they feel should be included.

Payments – sometimes payment to the copyright owner is required in order for them to grant their permission.  This section should detail the amount of the payment, when due, payment method and the mechanism in place to confirm or trace any ongoing payment plans.

Attribute the works – this section includes whether you need to give credit to anyone for the work…ie if you display a photograph the photographer may want you to mention them on your website or provide a link to their own website.

Alterations and Additions – this could be a lengthy section as it would include any conditions applying to allowed alterations or additions to the works.

Prevent unauthorised use – the copyright may require you to include details of what you plan to do or what mechanisms you plan to install to protect their work.

Arbitration or Mediation – this section is optional, however in my personal opinion it should be included as a mandatory clause as it makes provisions for what process will be followed in the event of any disputes.

References used for this post were:
Australian Copyright Council
Book – Website and Copyright, Publisher: Australian Copyright Council, Published: October 2002

Amanda

General copyright rules state that permission from a copyright owner must be sought in order to use or reproduce their works.  As with most things in life, there are exclusions to this general rule which are detailed in the Copyright Act 1968.  These exclusions are:

• Copyright has expired
• Less than a substantial part is being used
• Special Provisions for Educational Institutions, Libraries and Governments
• Fair Dealing

With all the above exclusions there are sections in the Act which clearly define the exclusion and the guidleines which must be adherred to when relying on this exclusion to use or reproduce works.

Today, I am going to be looking at “Fair Dealing”.  “Fair Dealing” applies only to the following circumstances and again there are guidelines to follow:

• Research or Study (Sections 40 and 103C of the Act)
• Criticism or Review (Sections 41 and 103Aof the Act)
• Parody or Satire (Sections 41A and 103AA of the Act)
• Reporting News (Sections 42 and 103B of the Act)
• Legal Advice (Section 40 of the Act)

The circumstances of each individual case will determine what is considered “fair”.  An information sheet published by the Australian Copyright Council states “In a recent case, the Federal Court stated that whether a dealing is fair or not “is to be judged by the criterion of a fair minded and honest person”.”

In deciding a “fair delaing defence” a court would consider whether the use is for commercial purposes, whether the copyright owner is out of pocket, and whether or not the use is exclusively for personal use.  The mere fact of not making money from the use does not make it a “fair dealing”.

An interesting point to note, is that Sections 41A and 103AA of the Act (dealing with Parody or Satire) are realitvely new sections in the Act and the Act does not define the words “Parody” or “Satire” and a court has yet to consider these terms.  As such there is very little court precedent to rely upon when making a decision to use works based on this “Fair Dealing” exception to the Act.

References used while writing this post were:
Australian Copyright Council
Wikipedia
Australian Copyright Act 1968

Amanda

Image via Wikipedia

Image via Wikipedia

Copyright is the term which is applied to the legal protection afforded to authors of many types of works including, books, movies, websites, artists, poetry, photography etc.  This “protection” is free and automatically protects the author from having their work used and/or reproduced illegally (ie. without their permission).

The Collins English Dictionary defines “Copyright” (noun) as: “the exclusive legal right to reproduce and control an original literary, musical, or artistic work,”.

The Law which governs copyright in Australia is the “Copyright Act 1968″.  There have been many amendments to the act over the years to keep up with our ever changing world especially with the introduction of the “Digital Age”.

Works which are available in the “public domain” are works which are no longer covered by a copyright and are freely available for use or reproduction.

Works are not available in the “public domain” unless a copyright holder releases their copyright or the copyright expires under the rules of current legislation.  As a general rule, Copyright expires 70 years after the death of the author or 70 yewars after the works were first published.  This includes any works which were produced “anonymously” or under a “pseudonym”.

There are exceptions to this general rule and more information on these exceptions can be found by visiting the website for the Australian Copyright Council.

If you do not hold the copyright for works and you wish to use it or reproduce it you must seek permission from the owner of the copyright.  This permission should be sought in writing.

More information can be sought by visiting the following websites:

Australasian Legal Information Institute
Australian Copyright Council
Copyright Act 1968
Collins English Dictionary

Amanda