Last updated:

March 29, 2019

What to do to publish or copy 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 'use' the copyright protected material, for example 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. Copyright Duration

Copyright has expired on a significant portion of records in the PROV collection, meaning they are now in the public domain. 

For instance:

•    All ‘Crown copyright’ in records that were created more than 50 years ago are out of copyright. For example as at 1 January 2019, all records made or first published by the ‘Crown’ before 1 January 1969 are in the public domain.
 
•    With some exceptions all records created by anonymous or pseudonymous authors made more than 70 years ago are out of copyright. For example as at 1 January 2019, all such records made before 1 January 1949 are in the public domain.  

However copyright in some records, in particular those which have been published by a private individual or organisation, may still exist; and it is ultimately your responsibility to determine the copyright status of any material in the collection that you wish to use.

The table below outlines the duration of copyright in different types of works. This table is intended as a general guide only. More information on copyright duration can be found on the Australian Copyright Council Factsheet: Duration of Copyright
 

Material Copyright duration
Literary, dramatic or musical material in records made public (includes published works) before 1 January 2019. Life of author plus 70 years
Literary, dramatic or musical material in records first made public after the death of the author but before 1 January 2019. Date of first publication plus 70 years.
Literary, dramatic or musical material in records not made public as of 1 January 2019.  Life of author plus 70 years.
Photographs.

If made before 1 January 1955: copyright has expired.

Otherwise: life of author plus 70 years.

Where author is anonymous or pseudonymous.

If never made public: date made plus 70 years.

If made public on or after 1 January 2019 and within 50 years of being made: date first made plus 70 years.

Sound records and cinematographic films.

If made public within 50 years of being made: date first made public plus 70 years. 

If not made public within 50 years of being made: date made plus 70 years.

Material first made or published by a Commonwealth, State or Territory Government (ie. Crown Copyright). Date made plus 50 years, regardless of whether the work is made public or not.

 

NB Under the Copyright Act 1968 ‘made public’ means where the work was ‘communicated’ to the public, ie. made available or seen or heard in public.
 

4. When can I reproduce copyright protected material?

You can reproduce (i.e. copy) a copyright-protected work if:
•    you have permission or a licence from the copyright owner
•    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. 

PROV provides a copying service, which requires researchers to submit a form in Reading Room or online here. 
 

5. Types of copyright protected material PROV can grant permission for others to use

On behalf of the State of Victoria, PROV can give express permission and license for others to copy, publish, and otherwise use either:
•     material that it has created, or
•     records in the collection which are protected as Crown copyright. 

Crown copyright can exist in material made, commissioned or first published by the ‘Crown’. Not all government agencies are considered part of the Crown. The following table provides guidance on which agencies are and are not. 
 

Type of entity Part of the 'Crown'?
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

 

6. Where PROV cannot grant permission for reuse

If a government agency does not form part of the Crown, then PROV cannot grant permission to re-use (publish) records which have been created by or commissioned on behalf of this agency. PROV also cannot give permission for copyright material in records created by private individuals or organisations because these 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 records. PROV cannot undertake to find copyright owners on your behalf. Researchers who cannot identify or trace the owner of copyright in a record may wish to consult the Australian Copyright Council publication Orphan Works available from their website. 

PROV will ordinarily grant a licence to Crown Copyright records to researchers, unless special circumstances apply. 

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 not license 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.
 

7. Steps for obtaining permission from PROV 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.

Step One: Determine who is the creator or author of the record (i.e name or title written, signed or printed).

Step Two: Determine whether the creator of the record is a government officer.

Yes: Go to Step Three
No: Go to Step Four

Step Three: Submit an online Request for Permission to Reuse(Publish) a Record 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.

Step Four: It is your responsibility to conduct a reasonable search for the copyright owner and consider your risks in publishing records where the copyright owner cannot be traced.
 

8. What is fair dealing?

The fair dealing provisions of the Copyright Act 1968 permit certain types of copying and use of the copyright material 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 Australian Copyright Council publication Fair Dealing: what can I use without permission? 
 

9. Copying material for the purposes of research or study

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

For literary, dramatic or musical types of works which are published, a reasonable portion for these purposes is defined in the Copyright Act 1968 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.

For other material, 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.
 

10. 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. 

Under the Copyright Act 1968, an unpublished record may also be copied and provided to you by PROV staff if a fair dealing exception applies, or if:
•    it forms part of the collection and is available for public inspection, and
•    its author died more than 50 years ago. 
 

11. 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.
 

12. 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/

 

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: https://www.screenrights.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: viscopy.net.au

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

 

Disclaimer

This information is intended as a general guide to researchers on copyright.
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.