Guide to Copyright

Electronic Rights Management Information

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Electronic Rights Management Information

The Copyright Act provides civil remedies and criminal sanctions against the removal of electronic rights management information (ERMI). There are also remedies and sanctions against commercial dealing in copyright material where ERMI has been removed, if the person knows this was done without lawful authority. ERMI is information (or numbers or codes that represent the information) attached to or embodied in copyright material that identifies the work or other subject-matter, identifies the copyright owner, or contains any terms or conditions imposed on use of the copyright material. The definition of ERMI includes information that is separate from, but appears in connection with, or has at some point in time appeared in connection with, a copy of the work or other subject-matter.

Carriage Service Provider (CSP) Scheme

The purpose of the CSP scheme is to provide legal incentives for CSPs to cooperate with copyright owners in deterring the infringement of copyright, and limitations on the scope of remedies available against CSPs for copyright infringements that they do not control, initiate, or direct, and that take place through their systems or networks.

There are four separate types of activities undertaken by CSPs that are covered by the scheme:

  • Category A – where the CSP acts as a conduit for internet activities through the provision of facilities for transmitting, routing or providing connections for copyright material.

  • Category B – where the CSP caches copyright material through an automatic process.

  • Category C – where the CSP stores copyright material on their systems or networks.

  • Category D – where the CSP refers users to an online location using online information location tools or technology.

The CSP scheme is voluntary. The scheme does not affect whether or not a CSP is liable for infringement, but rather the consequences of that liability. Where a CSP complies with the conditions relevant to activities under scheme, a court cannot award damages against the CSP in relation to those activities.

Are there any exceptions to infringement?

To balance the rights of copyright owners with the needs of the public to have access to copyright materials, the Copyright Act provides a number of exceptions to the general rules regarding infringement of copyright.

Fair dealing

There are a range of exceptions that enable the exercise of certain copyright rights without constituting copyright infringement. They may be raised in answer to a claim of infringement. The most important of these exceptions permits 'fair dealing' for certain specified purposes. A fair dealing with a copyright work, sound recording, film or broadcast will not amount to an infringement of copyright if done for the following purposes:

  • research or study

  • criticism or review

  • reporting of news

  • giving of professional advice by a lawyer or a patent or trade marks attorney, or

  • parody and satire.

Whether an exercise of copyright rights amounts to a fair dealing is a matter to be determined on the facts of each case. Many factors may be taken into account. In the case of reproduction for research or study the factors include: the purpose and character of the use, the nature of the work or other subject-matter, the amount and substantiality of the portion copied, the possibility of obtaining the work within a reasonable time at an ordinary commercial price and the effect on the commercial value of the work or other subject-matter.

The 10 per cent rule

Can I copy 10 per cent of a work without infringing copyright?

There is no general exception that allows 10 per cent of a work to be reproduced without infringing copyright. Where a part of a work is copied, the issue is whether a substantial part of that work has been reproduced and an infringement has occurred. However, there is a reasonable portion or 10 per cent rule which applies in relation to fair dealing copying for the purposes of research or study. A reasonable portion of most categories of works may be copied for research or study. A reasonable portion is 10 per cent of the pages of a work of more than 10 pages, or 10 per cent of the words of a work in electronic form or one chapter if the work is divided into chapters.

In the case of fair dealing copying for the purposes of research or study the Copyright Act specifically provides that it is a fair dealing:

  • to make a single copy (all or part) of a journal article in a periodical publication,

  • to make a single copy (all or part) of multiple journal articles from the same periodical publication, providing they are for the same piece of research or coursework

  • to copy up to one chapter or 10% of the number of pages of a published work more than 10 pages long, or

  • to copy up to one chapter or 10% of the number of words of a work published electronically.

It is a fair dealing to copy one chapter even if it is longer than 10% of the pages or words in the work.

Exceptions for private copying

Is there a general exception for home copying?

There are exceptions for home copying in specific circumstances. The main exceptions are for format-shifting of certain works and time-shifting of broadcasts. The format-shifting exception allows certain types of material that a person owns to be copied into a different format for private or domestic use. For example, a book can be scanned into an electronic form. The format-shifting exception also allows music from a legitimately purchased CD to be copied to an MP3 player, Xbox, computer or other device. The format-shifting exception does not cover computer games.

The time-shifting exception allows television or radio broadcasts to be recorded to be watched or listened to at a later time. The recording can only be used for private or domestic use and cannot be kept indefinitely.

There some exceptions for private copying. The main exceptions are format-shifting, time-shifting and uses of copyright material for special purposes.

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