Newsletters & Copyright

Transcription

1 INFORMATION SHEET G044v11 December 2014 Newsletters & Copyright In this information sheet, we give a brief overview of copyright law as it relates to the use and creation of newsletters. If you work for a State, Territory or Commonwealth government department, see our information sheet Governments: Commonwealth, State and Territory. We give more detailed information about copyright issues in relation to writing and publishing in our books Writers & Copyright and Copyright & Publishers. The purpose of this information sheet is to give general introductory information about copyright. If you need to know how the law applies in a particular situation, please get advice from a lawyer. Key points You will generally need permission to use someone else s text or images in your newsletter. In most cases, even if you make changes to someone else s work, you will still need permission to be able to use the work. There is no general exception to copyright obligations for non-profit organisations or purposes. How does copyright affect newsletters? Generally, newsletters contain two kinds of copyright material: literary works (including articles, letters, stories, poems and reports); and artistic works (including drawings, photographs and paintings). How long does copyright last? The general rule is that copyright in a published literary, artistic or dramatic or musical work lasts for the life of the creator plus 70 years. This rule came about through amendments to the Copyright Act following the Australia US Free Trade Agreement, which came into effect on 1 January This rule replaced an earlier general rule that copyright lasts for the life of the creator plus 50 years. The Free Trade Agreement amendments did not revive copyright if copyright had already expired by 1 January Therefore, generally speaking, if the creator died before 1 January 1955 then copyright has expired in Australia. However, there are some exceptions. For detailed information, see our information sheet Duration of Copyright. When do you need permission? You will usually need permission from the copyright owner if you want to include all or any substantial part of material in your newsletter, if it was:

2 Australian Copyright Council Information Sheet G044v11 Newsletters & Copyright 2 created by someone other than a colleague at your organisation who was employed to create such material; sourced from newspapers, journals, magazines or books; sourced from the internet; or sourced from any other third party source. A substantial part is a part that is important, essential material or distinctive to the copyright subject matter being copied. Permission is needed to reproduce it. There are many court cases about whether reproducing part of a work infringes copyright. In one case, the court held that 4 lines from a 32 line Rudyard Kipling poem was a substantial part of the poem; other cases have held that even fewer lines may constitute a substantial part. Each of these cases depends on its own facts, so there are no clear guidelines about the number of words, or percentage of a work, which may be used without permission. In assessing whether or not a part is a substantial part, the quality of the part is more important than the quantity or proportion. The part may be a small proportion of the whole work, but still be a substantial part for copyright purposes, particularly if it resulted from a high degree of skill and labour. When don t you need permission? Using names, titles, ideas and information Copyright is unlikely to protect a name or title and you are therefore unlikely to infringe copyright if you reproduce a name or title in your newsletter. For more detail, refer to our information sheet Names, Titles and Slogans. Also, copyright does not protect ideas or information, as such. Rather, it protects the way in which an idea or information is expressed. For example, copyright does not protect the idea of writing an article about current industry trends, but it does protect the article itself. For more detail, refer to our information sheet Ideas: Legal Protection. Using quotations too small to be a work Some quotations may be too small to be literary works, and may therefore not be protected. For example, a slogan, saying or headline may be too small or unoriginal to be a work, and thus not be protected by copyright. In one case, the court said: An original literary work must be the product of some substantial application of knowledge, labour, judgment, or literary skill or taste on the part of the author of it, but the precise amount of these several things which is required cannot be defined and must depend largely on the special facts of the case and must in each case be very much a question of degree. For more information, see our information sheet Quotes and Extracts. Specific exceptions There are some specific exceptions in the Copyright Act which allow use of copyright material for certain purposes without permission. The special exceptions most relevant to newsletters are likely to be: fair dealing for criticism or review; fair dealing for reporting the news; and

3 Australian Copyright Council Information Sheet G044v11 Newsletters & Copyright 3 fair dealing for parody or satire. Criticism or review You may reproduce copyright material for the purposes of criticism or review without the copyright owner s permission. For example, you may reproduce an extract from a book in a book review provided your use is fair, and genuinely for the purpose of criticism or review. You must also identify the work and its author. In one case, the court referred to the following Macquarie Dictionary definitions: criticism : review : 1. the act or art of analysing and judging the quality of a literary or artistic work, etc: literary criticism. 2. the act of passing judgment as to the merits of something 4. a critical comment, article or essay; a critique. 1. a critical article or report, as in a periodical, on some literary work, commonly some work of recent appearance; a critique Reporting the news The Act provides that a fair dealing with a copyright work is not an infringement if it is for the purpose of, or is associated with, the reporting of news. Unless the work is anonymous and doesn t have a title, you must identify the work and its creator to be able to rely on the provision. The dealing must also be fair for example, publishing previously unpublished material or material that has been illicitly obtained may not be fair. This exception is only available to a newspaper, magazine or similar periodical. It could be argued that the exception is available in relation to a newsletter, provided the newsletter is published on a periodic basis. Parody or satire The Act allows copyright material to be used for the purpose of parody or satire provided that the use is fair. This defence hasn t been tested in an Australian court, and the terms parody and satire are not defined in the Copyright Act. It is likely that a court would look at dictionary definitions of the words to work out what they mean. The Macquarie Dictionary includes the following definitions: parody : 1. a humorous or satirical imitation of a serious piece of literature or writing. 2. the kind of literary composition represented by such imitations. 3. a burlesque imitation of a musical composition. 4. a poor imitation; a travesty. burlesque (used as an adjective): satire : involving ludicrous or debasing treatment of a serious subject. 1. the use of irony, sarcasm, ridicule, etc in exposing, denouncing, or deriding vice, folly etc. 2. a literary composition, in verse or prose, in which vices, abuses, follies etc are held up to scorn, derision, or ridicule. 3. the species of literature constituted by such composition.

4 Australian Copyright Council Information Sheet G044v11 Newsletters & Copyright 4 A parody is an imitation of a work, and may include parts of the original. In some cases, a parody may not be effective unless parts of the original are included they may be needed to clarify the parody s comment on the work or on its creator. The purpose of satire, on the other hand, is to draw attention to characteristics or actions such as vice or folly by using certain forms of expression, such as irony, sarcasm and ridicule. It is unlikely that simply reproducing a humorous image in a newsletter for illustrative purposes would satisfy this fair dealing defence. Note also that, where the defence applies, you will have to be careful that your parody or satire doesn t infringe the moral rights of the creator. For more information, see our information sheet Parodies, Satires & Jokes. Government use of copyright material Governments have greater rights in relation to copyright material than other users. The Copyright Act provides that Commonwealth, State and Territory governments do not infringe copyright if their use of copyright material is for the services of the government. This means that governments can use copyright material, including books, periodicals, music, broadcasts and videos, for government purposes without permission. For more information, see our information sheet Government: Commonwealth, State and Territory. Where do you get permission to reproduce copyright material? We have included some brief comments on getting permission below. For more detail, refer to our information sheet Permission: How To Get It. Implied permission There may be an implied permission to reproduce material written expressly for a newsletter (for example, articles written by volunteers or freelancers, or letters to the editor ). Such implied permission may be limited in its scope, however, and may not extend to use of the material in other contexts. Published material If you want to use published material, the first point of contact is usually the publisher, who may be able to give you permission or give you information about who to contact. It s good practice to get permissions in writing make sure you get a permission that covers all the uses you want to make of the material. Unpublished material For unpublished material, the first point of contact is usually the creator or, if the creator has died, his or her executor or heir/s. Anonymous material A work does not need to have the copyright notice or the author s name on it to be protected. The absence of a copyright notice or the author s name may, of course, make it more difficult to obtain permission. The Copyright Act does not allow you to use protected material without permission even if you are unable to determine who owns copyright. If you wish to use such material in your newsletter, you should assess what risks might be involved in using it without permission.

5 Australian Copyright Council Information Sheet G044v11 Newsletters & Copyright 5 Material on websites You will generally need permission to include material from websites in your newsletter. Sometimes, general permission to use the material is granted by a statement on the website. If this is not the case, contact the webmaster for permission. Note that permission on a website to print one copy or to the material to a friend is unlikely to extend to permission to reproduce the material in a newsletter. Copyright collecting societies In some circumstances, you may be able to get a licence from a collecting society to reproduce material, if the owner of the copyright belongs to that society. Copyright Agency is a collecting society which represents Australian and overseas authors and publishers. See its website at for more information. Copyright Agency Viscopy is a collecting society whose members are Australian owners of copyright in works of visual art, such as photographers, painters, illustrators and so on. It can license the reproduction of its members works and works licensed by affiliated organisations around the world. Viscopy s business is now managed by Copyright Agency. Viscopy remains a separate legal entity, with members and a board. See: Moral rights In addition to copyright issues, you need to make sure you fulfil your moral rights obligations. These are obligations to creators of the work you want to use, and they apply whether or not the creator is the owner of copyright in the material. When using textual and illustrative material you must: attribute the creator of the work; not falsely attribute the creator s work as being the work of someone else; not attribute work that s been altered in a way that suggests it s the creator s unaltered work; and not alter or otherwise treat the creator s work in a manner which is prejudicial to the creator s reputation or honour ( derogatory treatment ). These obligations must be met unless the derogatory treatment or failure to attribute is reasonable in the circumstances or you have the creator s consent. For further details, see our information sheet Moral Rights and our practical guide of the same title. Frequently Asked Questions (FAQs) Can I avoid infringing copyright if I make changes? Changing or adding to a copyright work will not necessarily avoid an infringement. For example, copyright in a literary or dramatic work may be infringed by quoting directly from the work or by paraphrasing the work if the paraphrase still reproduces an important part of the work (such as the way the information is structured). Similarly, copyright in an artistic work may be infringed if a small but important part of it is used, or if an important part of a design is reproduced in another medium, or by hand sketching or by photocopying or some other method of reproduction.

6 Australian Copyright Council Information Sheet G044v11 Newsletters & Copyright 6 If I say where the quote came from, can I use it without permission? Attributing the author does not negate an obligation to get permission from the copyright owner. As noted above, you won t need a copyright clearance if what you are using is less than a substantial part of the original work. However, you should generally attribute the creator anyway. If I use another person s work for a non-profit purpose, do I need permission? There is no special exception which allows you to use a work without permission just because it is being used for a non-profit purpose. You may be able to persuade the copyright owner to give permission for a low fee, or no fee, if the use is non-profit, but you ll still generally need to get permission. Can I avoid infringement by paraphrasing? Generally, you won t avoid infringing copyright by paraphrasing an article. You are likely to infringe copyright if you closely paraphrase another person s work, closely following the structure of the other person s work or the detailed order in which the information or ideas were expressed. This is because the structure and order in which the information or ideas are set out are part of the other person s expression of that information or those ideas. Similarly, merely making changes to a work will not avoid infringing copyright if the altered version includes an important part of the work. However, you do not infringe copyright if you write something new based on information or ideas you have learned from the works of others, provided the expression of the information or ideas is yours. Is there any problem with using clipart or other images from software to illustrate my newsletter? Check whether the licence agreement which came with the software allows you to use the clipart or images to illustrate your newsletter. If you get images from a website, check the terms and conditions of use on the website. What should I do if people submit material which appears to have been written or created by some other person? If there is doubt as to whether the supplier of the material is the copyright owner (for example, where a cutting from a newspaper is supplied for republication in the newsletter), ask further questions about where the material came from, so you (or the supplier of the material) can get permission if necessary. Can I give permission to the publishers of another newsletter to republish material from my organisation s newsletter? You can only grant permission for someone else to use material published in your newsletter if you own copyright in that material or have authority from the copyright owner to grant such permissions. If neither of these is the case, you will generally need to refer people who wish to reuse material to the relevant copyright owner. Is plagiarism the same as infringing copyright? A person who plagiarises someone else s work does not necessarily also infringe copyright.

7 Australian Copyright Council Information Sheet G044v11 Newsletters & Copyright 7 Generally, plagiarism is concerned with ethical and professional standards which hold that you should not pass off someone else s work, including their ideas, as your own. Copyright does not protect ideas, and does not protect against unimportant parts of a work being copied. Can I rely on the parody or satire defence to use cartoons or funny photographs in our newsletter? It s unlikely that reproducing an image from, for example, a book, newspaper or the internet merely to illustrate a newsletter would satisfy the fair dealing defence for parody or satire. The defence will only be available if the use of the image is fair and you use it for a parodic or satirical purpose. Further information For further information about copyright, and about our other publications and seminar program, see our website If you meet our eligibility guidelines, a Copyright Council lawyer may be able to give you free preliminary legal advice about an issue that is not addressed in an information sheet. This service is primarily for professional creators and arts organisations but is also available to staff of educational institutions, libraries and governments. For information about the service, see Reproducing this information sheet Our information sheets are regularly updated - please check our website to ensure you are accessing the most current version. Should you wish to use this information sheet for any purpose other than your reference, please contact us for assistance. About Us The Australian Copyright Council is an independent, non-profit organisation. Founded in 1968, we represent the peak bodies for professional artists and content creators working in Australia s creative industries and Australia s major copyright collecting societies. We are advocates for the contribution of creators to Australia s culture and economy; the importance of copyright for the common good. We work to promote understanding of copyright law and its application, lobby for appropriate law reform and foster collaboration between content creators and consumers. We provide easily accessible and affordable practical, user-friendly information, legal advice, education and forums on Australian copyright law for content creators and consumers. The Australian Copyright Council has been assisted by the Australian Government through the Australia Council, its arts funding and advisory body. Australian Copyright Council 2014