I start with a warning. Copyright law is complex and it is in flux. The Commonwealth Parliament is currently considering the "Copyright Amendment (Digital Agenda) Bill", 1999. Also, Copyright is a creation not just of Australian law but also of International law.

To add to this complexity, Copyright law, like all law, is a mixture of Statute law and Case law, with many issues as yet untested by either the Federal Courts or the Copyright Tribunal. Indeed, all Australian schools are currently involved in a case before the Copyright Tribunal. This case is dealing directly with questions relating to the photocopying and digital copying practices of Australia's schools. In addition, this schools' case also involves the key question of what might constitute appropriate "equitable remuneration" payable to the owners of copyright material in print form which is being reproduced by the schools. As part of this process remuneration for digital copying also has to be determined.

Given this context, I am not able to stand before you at this conference and tell you precisely what you may or may not copy, and for what price, in our new digital age.

Rather what I propose to do is to outline some of the copyright issues which confront the post modern, deconstructed school librarian.

The development of Copyright law has run parallel with the development of copying technologies, commencing with the printing press, circa the 15^th century. In fact English, and hence Australian, Copyright law dates from the reign of Mary Tudor. Indeed, Australia didn't enact its own Copyright law until 1968. The 1968 Commonwealth Copyright Act (as amended) currently regulates your activities as librarians (as noted above, it will soon be amended in response to the digital revolution).

At an international level there are a range of Copyright treaties, commencing with the Berne convention of 1896.

In Australia Copyright protects:

The copyright Act also says you must get consent from a performer to record, broadcast or cable a live performance. Consent may also be needed to use an unauthorised recording of a performance, or to use an authorised sound recording of a performance on a soundtrack to a film. Permission is also required for any public performance of a Copyright work.

Generally speaking copyright protection lasts for the life of the author plus fifty years. As noted, publishers can also attract copyright protection for twenty five years, so beware the Shakespeare problem!

Also you need to remember that a single item may contain a number of works protected by Copyright. For example, a CD ROM or Internet site may contain various literary, musical and artistic works, as well as a cinematograph film. A music compact disc, for example, in addition to receiving protection as a 'sound recording' will contain a number of underlying works, such as musical scores (musical works), lyrics (literary works), and performances. A multimedia product could contain a vast number of different underlying Copyright materials, including text, software as well as the overall compilation (protected as literary works), photographs, drawings and other graphic images (artistic works), music (musical works), scripts (dramatic works), recorded music clips (sound recordings), animation, film and video clips (cinematograph films) and performances. Identifying and managing each of these copyright materials is no easy task. Also a range of Copyright fees may arise for payment if any of these items were to be copied. You also need to add to this the problem that in the digital age no one is quite certain as to what the word "copy" means.

Since a creator's copyright generally only lasts for their lifetime plus fifty years, the view persists that "dead poets" (authors and song writers) can be copied at will.

This ignores the fact that copyright also applies to published editions. (Remember 25 years for each new edition).

Also an unpublished work, including any photograph taken after 1969, only enters its period of copyright protection upon publication! Indeed the question of Copyright in photographs is quite complex and advice should be sought before any photograph is incorporated into any publication, including any Internet site.

You also need to add to this the problem that in the digital age no one is quite certain as to what the word "publish" means.

It might interest you to know that the State of Austria has only recently lost its Copyright to "Mein Kampf", created you will recall by one A. Hitler.

As an aside "Mein Kampf" raises the link between wills and copyright. It also explains why so much Nazi memorabilia is only now entering collectors sales!

Myth 4: Only "Registered" Materials are Copyright Protected

There is no system of registration for copyright protection in Australia. A creator does not need to publish their work, or put on a copyright notice, or to do anything to be covered by copyright - the protection is free and automatic. There are no forms to fill in, and there are no fees to be paid.

It should be noted, however, that Copyright registration was required in the United States prior to the 1980s.

A work is protected automatically from the time it is first written down or recorded in some way, provided it has resulted from its creator's skill and effort and is not simply copied from another work. For example, as soon as a poem is written, or a song is recorded, it is protected. This talk is copyright protected. (Has anyone turned their tape recorder on this morning?)

Because of international treaties such as the Berne Convention, most foreign copyright owners are protected in Australia, and Australian copyright owners are protected in most other countries.

A copyright notice is not necessary for protection in Australia and in most other countries, but it does notify people that the work is protected and identifies the person claiming the rights. All Internet sites should carry a copyright notice. The CEC site does! Soon I shall show you what Disney Corporation says about its site.

Copyright owners can put a notice on their work themselves; there is no formal procedure. The notice consists of the symbol ©, followed by the name of the copyright owner and the year of first publication. Conversely a copyright owner may, in writing, waive (give away) or assign (transfer), their Copyright

Myth 5: Copyright does not apply to the Internet

Copyright does exist in cyberspace. It always has.

When the Internet began, it was a forum for exchange of information and ideas, and there was an understanding (an implied or explicit waiver) that material available on the Internet could be copied by users of the Internet. There was also an understanding that the Internet was not to be used for commercial purposes. This assumption no longer applies! At law Copyright has always applied to the net.

Now that the Internet has become easily accessible to a vastly greater number of people, and given the fact that people and corporations are using the Internet for all sorts of purposes, including commercial ones, the continuation of this culture or attitude of free use has far-reaching consequences for people who want to control, or at least be paid for, the copying of their material. The misconception that anything available on the Internet is "in the public domain" or "copyright free" is widely held.

Unless an Internet site contains advice to the contrary (i.e. a waiver) copyright applies!

By way of example, there exists an Australian Internet site for the publication of poetry called "Jacket", www.jacket.zip.com.au/welcome.html. The "Jacket" site has been established to showcase new Australian poetry and it carries the following Copyright notice:

"Jacket" is exactly the type of site which a school may want to access.

The question arises what does the restriction for "personal use" mean? Would "personal use" include use by a student's school? I think not.

Myth 6: Copyright is unenforceable on the Internet

Both the law and technology are moving fast to enforce copyright in cyberspace.

With respect to the law, Internet enforcement is proceeding in both international and national jurisdictions.

Internationally new conventions are being written including:

Domestically, as already noted, a set of Digital Agenda amendments are about to be made to the Australian Copyright Act.

Regarding technology, each Internet server already logs internal and external traffic. All e-mail can be monitored. Incidentally, it appears to be acceptable at law for employers to search their employee's e-mail boxes where the computer and the network(s) involved are the property of the employer.

Both Bill Clinton and Bill Gates have learnt through litigation that e-mail can be recovered from cyberspace and subjected to subpoena. Sniffer software exists and is being further developed which allows copyright owners to track down and locate their property. Examples of such software include:

Since the general introduction of photocopying machines in schools, from the early 1970s, legislative and administrative action has been taken to ensure the recovery of Copyright fees from schools.

Right now the following copyright fees are being recovered from all of Australia's schools:

Primary Secondary

Copyright Agency Ltd. (CAL) $2.442 $3.342
per student per student

Screenrights $2.63 per student

Australasian Mechanical

Copyright Owners Society (AMCOS) $0.3611 per student

Australasian Performing Rights Association

(APRA) $0.1161 per student

In addition, schools pay copyright fees for certain hymns and plays, the latter being Grand Right fees (i.e. fees for staging a play). Fees are payable for the public performance of music.

In total, for 1999, Catholic schools in NSW will pay approximately $1.3 million in Copyright fees. Nationally all of Australia's schools will pay some $19 million in Copyright fees for 1999.

These fees are themselves subject to review, with CAL fees being contested, as has been noted, in the Copyright Tribunal. Also, AMCOS is seeking a 30 cents per pupil increase in return for the extension of its licence to include the audio and video copying of music.

When considering AMCOS issues, it is relevant to note the connection between new technologies, new pedagogies, new syllabuses and new copyright costs! In this regard I invite you to consider the copyright implications of the new HSC (Stage 6) Music and Visual Arts syllabuses. Both are multi media syllabuses, both syllabuses assume the use of copyright material by students and teachers!

Myth 8: Copying is Free if it is kept to 10% of a work

This is not so much a myth as a confusion.

Here is an idea which conflates the different, though related, copying rights of:

I will deal with this set of issues below. It is in the deconstruction of this myth that the copying rights and liabilities of the school and its library, in the digital age, can be approached, if not quite yet answered.

Copyright is about property, intellectual property.

In the information age, with the emergence of the information economy, the most important property is intellectual property.

The substance of schooling is intellectual property. Schools are sited on the epicentre of the new information economy.

By analogy, in Australia's pastoral age, during the nineteenth and early twentieth centuries, land was the most important form of property. Now in the information age intellectual property has replaced land (and, if you watch the share market, also replaced gold!). Indeed, if you reflect on the changing value of real property (land) and intellectual property you might engage in some Marxist speculation as to why, as Australians, we now are willing to hand pastoral land (though not urban land) back to our Indigenous population but still largely resist recognising their intellectual property rights! Who does own all those dot painting logos appearing all over Australia's Internet sites and tea towels? Remember, before you place the Aboriginal flag on your Internet site that it is subject to Copyright!

Schools have the historical good, or bad, fortune (depending on your point of view) to operate on the legal fault lines of the information age. To illustrate this let me cite the following:

While you ponder these questions remember that when an item is placed on an Internet site it is published to the world! Intranets also involve publication, albeit to a defined audience.

Also consider that right now in the United States more than half of the workforce is employed in information-based jobs. In the United States the telecommunications and information sector is growing faster than any other sector of the economy, and Hollywood generates more export income than the car and steel industries combined.

Hollywood and companies like Disney are financial empires built on intellectual property. How might they react if a school appropriates their property?

In Australia copyright-based industries are growing at twice the rate of G.D.P. The net (no pun intended) contribution of copyright-based industries to the total Australian economy is about to surpass that of the Building industry, as it already has in America.

Schools, and those who administer them, must utilise the new information systems and engage with the new intellectual property issues inherent in those systems. Not only is the medium also the message, the message is very likely to be someone's property!

Also the Internet is creating new markets for intellectual property. Just think of all the photographs and art works needed to fill all those web sites! All the owners of those photographs and art works now have a market to exploit, thanks to the Internet.

Soon copyright owners will also possess a new "Communication" right.

If someone, other than the copyright owner, wants to exercise any of these rights, permission needs to be obtained.

There are, however, exceptions to this basic requirement to gain the copyright owner's permission. The major exceptions are:

Applying the reasoning of McLelland J. as set out in the case of Copyright Agency Ltd v Haines [1982] I NSWLR 182

(which case involved the NSW Department of Education) it appears that Fair Dealing is a copying option which can only be exercised by a school's students and not by the school or its agents.

A student may copy material without permission if:

For literary, dramatic and musical works, it is a fair dealing for a student to copy:

For a literary, dramatic or musical work published in an edition of 10 or more pages, a "reasonable portion" is:

In all other cases, a decision has to be made as to whether the copying is fair having regard to:

Libraries could well become the strategic legal battleground for Copyright law in the digital age.

Given the constraints of time, and because, I assume, most of you have some knowledge of Copyright as it applies to libraries, I shall not canvass the existing Statutory position. I will, however, distribute an Information sheet developed by the Australian Copyright Council. In passing you should note that this information sheet contains its own copyright waiver, see "Photocopying this information sheet" at page 6.

Indeed I recommend that you make use of the Australian Copyright Council as a vital and authoritative source of information on all Copyright matters, note their web site http://www.copyright.org.au

Uncertain is the word which best describes how existing Copyright law applies to the digital reproduction of works, particularly on the Internet.

As already noted above, both domestic law and international law is attempting to rapidly deal with the challenges of digital copying in general and the Internet in particular.

The Federal Government is promoting legislation which in part aims to:

"ensure that cultural and educational institutions can access copyright material online on reasonable terms including the provision of adequate remuneration to creators and investors"

You will note the important reference to "adequate remuneration to creators".

Specifically the Government's Copyright Amendment (Digital Agenda) Bill will (if enacted):

These digital copying rights for schools will involve the payment of "equitable remuneration" through the extension of the existing Copyright licences.

Obviously it is important that all of us engaged in education and libraries participate in the forthcoming debate on this Bill and its above outlined provisions.

Interestingly Copyright owners and the Federal Opposition both think that the Government's Bill overly favours Copyright users (and libraries in particular) to the detriment of Australia's new information industries!

You ask, "what of the original question" - "Can a Library Collection be Created for Nothing in the Digital Age?"

Well perhaps, but only if your library collection is to consist exclusively of:

As is presently the case, copied material will be a minor adjunct to purchased collections, not a substitute for them.

This, then, changes the question to "How will the purchased collection change?" Your purchased collection will include

Of course as you know, your library budget will also need to provide for the:

which are essential if any of the new digital information is to be accessed at all. Staff training costs will need to be factored into the equation as well.

Remember, in the beginning was the word and the word had an owner!

In the preparation of this talk use has been made of the following published materials:

Australian Copyright Council. Non-Profit Libraries: Print Resources A Practical Guide. (1999)

Australian Copyright Council. Copyright and the Internet. (1997)

Australian Copyright Council. Fair Dealing in the Digital Age: A Discussion Paper (1998)

Australian Copyright Council. Copyright and Economic Perspective (1994)

David H Rothman. "Copyright and K-12. Who Pays in the Network Era" (1999). Published at http://www.ed.gov.Technology/Futures/rothman.html

Commonwealth Parliament. Digital Agenda: Copyright Amendments, Exposure Draft and Commentary. February 1999.

Australian Society of Authors (Lynne Spender). Electronic Digital Rights: A Handbook for Authors (1996)