Today, over on Twitter, I saw that one of the accounts I follow wearing another hat had posted a recent picture (from within the last decade). I knew that they had not taken the original image, and I did not think that they had made the digital image. They also provided no attribution. And, while this is not uncommon on twitter or social media generally, it gave me pause to think. Ethically, should I contact them and gently point out the errors of their ways? Socially, how should I do this, and was it either appropriate or required? I am not, after all, a member of the copyright police, I’m not a lawyer and it was not my image, so I had no moral rights. In the end, I compromised by not retweeting the image, and by making a mental note to check on the most recent discussions on the Australian Law Reform Commission’s (ALRC) review of copyright.
As any librarian in Australia should know, the law may be an ass, but like any ass it can kick and bite. Many years ago, libraries were targeted for an infringement of copyright, not because they themselves were copying inappropriately, but because they were providing the technology, photocopiers, that allowed infringements to occur. The end result was the prescribed notice, identified in the Copyright Act regulations, that you see prominently displayed near photocopiers and scanners in every library, and the ‘10% rule’ (http://www.austlii.edu.au/au/legis/cth/consol_reg/cr1969242/sch3.html). Unfortunately for archivists, that part of the regulations and the notice target the copying of published materials only. For non-published materials, we are left with the fair use provisions in Part 3, and section 51 for our users, and with sections 51A, 183 and 200AB for ourselves. We are also bound by the regulations – should we wish to disseminate (broadcast) those copies, we need to contact the copyright owners, including the requirement to advertise in a government gazette for a period of three months and to have a vaild takedown notice. For government archives, which rely on their own statutory authority, the ability of the ass to bite and kick is a very real consideration.
In a little known or recognised quirk of the Act, we cannot actually share anything unpublished, even with each other, unless the author or creator has been dead for over 50 years. For photographs, things are a little trickier, but those taken before May 1955 are no longer in copyright. For maps and plans, and other government artworks, the copyright expires after 50 years. However, if the item is digitised, then we have to think about what was involved in creating the image; is it, in itself, a photograph? If the image was created through a straight mechanical process (putting it on a scanner or photocopier without any other action) then it may not be copyrightable – there is a US based judgement called Bridgman vs Coreldraw which is often cited. But if the image is cropped, colour balanced, despeckled or is adjusted in some other way, then there may be some intellectual content, and the digital image may have a copyright of its own. If it is an art photograph of an original work or photograph, then this is even more likely.
The ALRC review has recommended a form of fair dealing, which it is hoped will make the use of copyrighted, unpublished material (‘orphan works’) by archives, libraries and museums less fraught (http://screen.artshub.com.au/news-article/news/film/copyright-reform-rescues-orphans-198148). Over in the UK, the recent amendments to their Copyright Act have only just been promulgated, in large part because of a concerted effort by GLAM organisations to make it a priority in the most recent round of legislation. Quite how this will play out is still to be determined, but it provides the Australian community with an alternative model from the current fair dealing requirements and the proposed fair use amendments. I, for one, look forward to a little more clarity, and in the meantime, I’m checking both ends of the ass for good teeth and proper shoes, and trying to be as flexible as possible.