Copying and Publishing Public Records

1. What is copyright?

Copyright is a type of property founded on a person’s creative skill and labour.  It is independent of the custody or ownership of the physical item.

Copyright protects the author’s rights and interest in their original expression of ideas or information.  It consists of a number of exclusive rights including the right to copy, publish, communicate (eg. broadcast, make available online) or publicly perform the copyright material.

Copyright law in Australia consists of the Commonwealth Copyright Act 1968 and decisions made by courts.

 

2. What are my responsibilities?

When using records at Public Record Office Victoria (PROV), it is your responsibility to:

  • determine if the material you want to use is still in copyright;
  • determine if you are allowed to reproduce or otherwise use the record under copyright law;
  • identify who owns the copyright, and
  • contact the copyright owner to obtain permission to use the copyright material where permission is needed.

 

3. Who owns copyright in public records?

The Victorian Government owns copyright in most of the records held by Public Record Office Victoria (PROV). The State of Victoria owns ‘Crown’ copyright in any works created by public servants which are still protected as copyright. The State of Victoria is not the copyright owner for records in the collection that were not made, commissioned or first published by the Crown (for example, letters written by private individuals to the government).  PROV has the right (in most cases) to reproduce these records in its role as a public archive, but PROV cannot grant a licence for third parties, including researchers, to copy and otherwise re-use them.

 

4. What material can be licensed by PROV?

On behalf of the State of Victoria, PROV can grant a licence to material that it has created or has in its custody (including records in the collection) which is protected as Crown copyright. Crown copyright exists in works that were made, commissioned or first published by the ‘Crown’.  Not all government agencies are considered part of the Crown. The following table provides guidance on the status of records created by government agencies:

 

Type of entity

Material made by this entity is Crown copyright according to court judgements?

Ministers

Yes

State government departments

Yes

Statutory corporations

Yes

Police

Yes

Emergency services

Yes

Local government

No

Government schools and TAFE

No

Universities

No

Hospitals

No

Courts

No

Other records created by government

Unknown

 

Copyright in records created by private individuals or organisations are also not owned by the ‘Crown.’ It is the responsibility of researchers to find and obtain permissions from the current copyright owners when seeking to publish these records. PROV cannot undertake to find copyright owners on your behalf. Researchers which cannot identify or trace the owner of copyright in a record may wish to consult the Australian Copyright Council publication Orphan Works.  

PROV will ordinarily grant a licence to Crown Copyright records to researchers which allow them to reuse the record/s for the purposes of that particular application, as well as any other purpose so long as subsequent reuses of the record/s are non-commercial in nature. Non-commercial purposes may include, for example, publishing a copy of the record/s on a historical society website or a small print run of a hardcopy publication for primarily not-for-profit or cost recovery reasons. Researchers who wish to use the record/s for a separate commercial purpose must reapply to PROV for permission to reuse the record for that particular purpose.

Reuse of a record encompasses:

  • publishing the record, for example, in an article, book or online; and
  • adapting, transforming or remixing the record.

PROV will issue a licence to Crown copyright material in the Collection at its discretion. PROV will not licence material which it considers should be restricted for reasons of privacy, public safety, security and law enforcement, public health, commercialisation and compliance with the law.

 

5. Steps for obtaining permission to reuse (publish)

These steps should be followed when you are seeking permission to publish all or part of a record held by PROV. This process must be followed for each individual record and each creator/author of the record.

  1. Determine who is the author of the work on the physical record or in Access the Collection (i.e name or title written, signed or printed)
  2. Is the creator or author of the record a government officer?

    Yes: Go to Stage3

    No: Go to Stage 4

  3. Submit a Request for Permission to Reuse a Record form to PROV. If PROV determines that it cannot grant the permission for you, you must request permission to publish or otherwise reuse that record from the current responsible agency. PROV may be able to provide you with information about who is the current responsible agency.
  4. It is your responsibility to conduct a reasonable search for the copyright owner where required and consider your risks in publishing records where the copyright owner cannot be traced.   

 

6. When can I reproduce a work?

You can reproduce (i.e.copy) a copyright-protected work if:

  • you are permitted under the ‘fair dealing’ provisions of the Copyright Act 1968; or
  • you are permitted under the unpublished works provisions of the Copyright Act 1968; or
  • you have permission or a licence from the copyright owner.

Patrons wishing to use a digital camera in the Reading Room must complete a 'use of digital camera declaration' form.

PROV also provides a copying service, which requires patrons to submit a 'request to copy' form.

 

7. What is fair dealing?

The fair dealing provisions of the Copyright Act 1968 permit certain types of copying without the express permission of the copyright owner.

Fair dealing allows you to use the work for the purposes of:

  • research or study;
  • criticism or review;
  • parody or satire;
  • reporting the news;
  • for the giving of professional advice by a legal practitioner, a patent attorney or a trade mark attorney.

Whether a person’s use of copyright material is ’fair’ depends on the circumstances.

Courts have tended to look at whether an objective viewer would consider that:

  • the person is genuinely using the material for one of the purposes set out in the Act; and
  • their use of it is fair in that context.

More information upon what constitutes a ‘fair dealing’ of a work can be found in the Australia Copyright Council publication Fair Dealing: what can I use without permission?

 

8. Copying published records for the purposes of research or study

It is considered fair dealing to reproduce or otherwise use a reasonable portion of a published text for research or study.

A reasonable portion for these purposes is defined in the Act as:

  • a single copy of a published journal article, or
  • one chapter or 10% of a published book of ten or more pages, or
  • 10% of the number of words of a work published in electronic form.

     

The Copyright Act 1968 provides factors for determining whether, in all the circumstances, your use is fair in relation to reproductions of copyright material for the purpose of research or study. These are:

  • the purpose and character of the dealing;
  • the nature of the work; 
  • the possibility of obtaining the work within a reasonable time at an ordinary commercial price;
  • the effect of the dealing on the potential market for, or value of, the work; and
  • in a case where part only of the work is copied, the amount and substantiality of the part copied in relation to the whole work.

     

9. Copying unpublished records

PROV provides permission for copies to be made of unpublished records in its collection where copyright is owned by the Crown. These types of records are protected as Crown copyright. For more information on Crown copyright see ‘What material can be licensed by PROV?’. 

Under the Copyright Act 1968, all or part of an unpublished record may also be copied and provided to you by PROV staff for the purposes of research or study if:

  • it forms part of the collection and is available for public inspection; and
  • its author died more than 50 years ago; or
  • the record is a manuscript or other original version (such as a first copy of a film or first copy of a sound recording) and the research will be carried out in the Reading Room or on the premises of another archive or library.

 

10. Quotes and Extracts

  • Researchers should consider if permission is required for any quotes or extracts taken from public records in the PROV collection. An infringement of copyright will generally occur where a “substantial part” of a work is used. A part may be considered “substantial” if it is an important, essential or distinctive part. More information about quotes and extracts can be found on the Australian Copyright Council publication Quotes and Extracts.

     

11. How long does copyright last?

The length of time a work is protected by copyright varies depending on the type of material.  Most unpublished material remains in copyright until a predetermined period after it is first published.  As a result of the Australia-US Free Trade Agreement (AUSFTA), the period of protection for most material (except government material) was extended on 1 January 2005 to 70 years after date of first publication  There is no revival of copyrights that had already expired by that date.

Refer to the table below for the duration of copyright in different types of works.

 

12. Duration of copyright by type of work

Crown copyright – Material made, or first published, by a Commonwealth, State or Territory

Type of work

Publication status

Copyright has expired if

Protection period if work still in copyright on 1 January 2005

Literary, dramatic or musical work

Published

First published before 1 January 1955

50 years from end of year of first publication

Unpublished

N/A

Indefinite

Artistic works including maps & plans

N/A

Made before 1 January 1955

50 years from end of year of creation

Photographs, maps & plans created before 1 May 1969

Published

Made before 1 January 1955

50 years from end of year in which photograph was taken

Unpublished

N/A

Indefinite

Photographs, maps & plans created after 1 May 1969

Published

(Will still be in copyright on 1 January 2005)

50 years from end of year of first publication

Unpublished

N/A

Indefinite

 

Private copyright

Type of work

Publication status

Copyright has expired if

Protection period if work still in copyright on 1 January 2005

Literary, dramatic or musical works

Published

In author’s lifetime

Author died before 1 January 1955

70 years from end of year of author’s death

Posthumous

First published before 1 January 1955

70 years from end of year of first publication

Unpublished

N/A

Indefinite

Artistic works including maps & plans

N/A

Creator died before 1 January 1955

70 years from end of year of creator’s death

Photographs

Published

Made before 1 January 1955

70 years from end of year of creator’s death

Unpublished

N/A

Indefinite

Anonymous or pseudonymous works

Published

First published or made before 1 January 1955

70 years from end of year of first publication

Computer programs

N/A

Creator died before 1 January 1955

70 years from end of year of creator’s death

 

13. Further reading

The following organisations are recommended sources of more detailed information on copyright.

 

The Australian Copyright Council

The Australian Copyright Council publishes a large range of information sheets and books on copyright.  Other services include seminars, research, consultancy and free legal advice in some circumstances.

245 Chalmers Street

Redfern NSW 2016

Tel:        (02) 9318 1788                     Web:            www.copyright.org.au

 

The Australian Copyright Council has released an information sheet Family Histories and Copyright, available on their website, which researchers may find particularly useful.

 

The Arts Law Centre of Australia

The Arts Law Centre is a national community legal centre that provides advice and information on a range of legal issues to professionals and arts organisations.  Free advice by telephone is available toll free.

Tel:         1800 221 457                           Web:        http://www.artslaw.com.au/

 

The Commonwealth Attorney-General’s Department

The Commonwealth Attorney-General’s Department publishes a booklet called Copyright Law in Australia: A Short Guide, which may be accessed via the document section of the website.

Tel:        (02) 6250 6875                     Web:             http://www.ag.gov.au/

 

Copyright collecting societies

Copyright collecting societies are not-for-profit organisations that license or administer certain uses of copyright material on behalf of copyright owners.

Contact details for three of the major collecting societies are listed below.

 

Copyright Agency Limited (CAL)

The Copyright Agency Limited (CAL) administers copying licences on behalf of most of Australia’s authors and publishers and journalist members of the Media Entertainment and Arts Alliance.

CAL also administers statutory licences for educational institutions and government.

Level 19, 157 Liverpool Street

Sydney NSW 2000

Tel:        (02) 9394 7600                     Web:       www.copyright.com.au

 

Screenrights (the Audio-Visual Copyright Society Limited)

Screenrights may be able to help with identifying and finding copyright owners of audiovisual material.

Level 3, 156 Military Road

Neutral Bay NSW 2089

Tel:        (02) 9904 0133                     Web:       www.screen.org

 

VISCOPY

VISCOPY licenses the works of visual artists, including craft workers, photographers and designers.

Level 1, 72-80 Cooper Street

Surry Hills NSW 2010

Tel:        (02) 9280 2844                     Web:       www.viscopy.net.au/

For details of other copyright collecting societies, please contact the Australian Copyright Council.

 

Disclaimer

This information sheet is intended as a general guide to researchers on copyright and the PROV collection. It is not a substitute for legal advice and should not be relied on as such. If you need to know how the law applies in a particular situation, please seek advice from a legal practitioner.