University of Waikato Copyright Information

Questions and Answers on Copyright

Authored by

Tony Millett
Administration Services Manager
University of Waikato Library
University Copyright Officer

January 2004

Disclaimer
Questions and Answers
Subject Index

A copy of this document is available for download in Microsoft Word format.

DISCLAIMER

These answers represent my own personal opinion, in response to questions asked of me by University staff and students. Where appropriate you should seek advice from your legal adviser.

QUESTIONS AND ANSWERS

1. Q: Is it permissible to import publications other than through the copyright owner's licensee in New Zealand?
   A: Yes it is. The Copyright Act's restrictions in section 35 on importing an infringing copy (which in any case did not apply to importation for a person's private and domestic use) were amended by the Copyright (Removal of Prohibition on Parallel Importing) Amendment Act 1998.
2. Q: Can articles be copied from newspapers for inclusion in print course-packs?
   A: Copyright in articles printed in newspapers is complex. The copyright may be owned by the individual newspaper; by the news service (NZPA or Reuters); or by the writer of the article. There is likely to be separate copyright in any photograph or other illustration.
   
   New Zealand newspapers are specifically excluded from the CLL licence (Schedule 3 para 5). The licence does not exclude overseas newspapers, which may be copied within the limits of the licence - i.e. "the whole or any part of an article from a periodical publication ", or "up to 10 per cent of a work (other than an article in a periodical publication) " (Schedule 2 paras 1.1 and 1.2). The CLL licence does not define whether or not an overseas newspaper is a "periodical publication ".
   
   Section 44(3) of the Copyright Act allows copying for educational purposes of up to the greater of 3% or 3 pages of a work, which includes newspapers. It seems to be generally accepted that the 3% / 3 pages limitation refers (in regard to periodical articles) to the individual periodical article, not to the entire issue of the periodical. By analogy, therefore, the 3% / 3 pages limitation applies to the individual newspaper article (which does not often exceed more than one page), not to the entire issue or section of the newspaper.
   
   The Universities are currently negotiating a licence agreement with PMCA, the Print Media Copying Agency, for New Zealand newspapers, which will include both print and electronic copying.
3. Q: Can I copy more than 10% of a book for inclusion in print course-packs?
   A: The CLL licence (Schedule 2 para 1.2) limits copying from a book to 10% or one chapter. However, the licence (clause 2.3) specifically allows for an application to be made to CLL for copying beyond these limits. A charge may be made.
4. Q: Can I include in course-packs sections from a book which is out-of-print?
   A: The fact that a book is out-of-print does not affect the copyright in that book, although "whether the work could have been obtained within a reasonable time at an ordinary commercial price " (Copyright Act section 43(3)(c)) is one of the factors to be taken into account in determining whether copying is fair dealing for the purposes of research or private study.
   
   Under the licence (Schedule 2 para 1.5) CLL are able to give written permission to copy up to and including the whole of an out-of-print book, provided that they are satisfied that sufficient copies cannot be obtained within a reasonable time at an ordinary commercial price. A charge may be made. Electronic copying of a whole work is specifically excluded under this clause of the CLL licence.
5. Q: Can copies of a student's work be copied and made available to other students?
   A: Yes, provided that the student author's permission has first been obtained. Student work is not covered by the CLL licence (Schedule 3 para 10).
6. Q: Can I make a print copy from a work obtained on Interloan on microfilm or microfiche?
   A: Only within the limits of fair dealing for research or private study, set out in section 43 of the Copyright Act.
7. Q: Can material copied from a video or sound recording be included in a student presentation being made to a class?
   A: Section 45 of the Copyright Act restricts copying of videos for educational purposes to a lesson on how to make films or film sound-tracks; and copying of sound recordings for educational purposes to a lesson relating to the learning of a language, or a lesson which is conducted by correspondence. Other than this, it may be possible for a student to claim that the copying is being done under the fair dealing provisions of section 43, copying for research. Copies of off-air recordings may, however, be included in a student presentation, under the terms of the Screenrights licence.
8. Q: Can I include illustrations, maps, photographs or cartoons in print course-packs?
   A: Section 44(5) of the Copyright Act allows copying of the whole of an artistic work for educational purposes only if the artistic work is included within the part of a work being copied under the terms of section 44(3). However, the CLL licence agreement allows the copying of an artistic work, diagram or illustration published in a textual work, unless there is a copyright statement attached to the artistic work, for example "reproduced with permission ". For any other copying, including the copying of loose maps, photographs, cartoons or other artistic works, it is necessary to obtain permission from the copyright owner. A fee may be charged.
9. Q: Can multiple copies of music be made?
   A: Printed music (including the words) is excluded from the CLL licence (Schedule 3 para 2). Up to the greater of 3% or 3 pages may be copied for educational purposes under section 44(3) of the Copyright Act; for more than this, permission from the copyright owner must be sought.
10. Q: Can copies of articles from full-text databases subscribed to by the Library be included in print course-packs?
    A: Some, but only some, of the Library's licence agreements with electronic database vendors permit inclusion of copies of articles in print course-packs issued to students. Consult the Library as to which these are.
11. Q: Can links be made to specific full-text articles in electronic databases subscribed to by the Library?
    A: This is permitted for some but not all of the databases subscribed to. Consult the Library as to which these are.
12. Q: How do I claim copyright?
    A: Under New Zealand law you do not need to "claim " or register copyright. Section 14(1) of the Copyright Act states that "Copyright is a property right that exists, in accordance with this Act, in original works ... ". The standard symbol for indicating that a work is in copyright is the letter "c " in a circle and the year (e.g. © 2003).
13. Q: Does it breach copyright to read books on TV as a story time slot, and show some of the pictures in the book?
    A: Yes, without the prior permission of the copyright owner. In listing acts restricted by copyright, section 16(1) of the Copyright Act states:
    
    "The owner of the copyright in a work has the exclusive right to do, in accordance with sections 30 to 34 of this Act, the following acts in New Zealand: ... (c) To perform the work in public; (d) To play the work in public; (e) To show the work in public; (f) To broadcast the work or include the work in a cable programme service ... ". And section 33 states: "The broadcasting of a work or its inclusion in a cable programme service is a restricted act only in relation to: (a) A literary, dramatic, musical, or artistic work ... "
14. Q: Could you suggest some wording that I would be able to insert onto a video copied off-air.
    A: You could add a statement such as the following: "This video includes recordings of broadcasts made for the educational purposes of the University of Waikato, in accordance with the terms of section 48 of the Copyright Act 1994, and/or the University's licence agreement with Screenrights ".
    
    In addition, the Screenrights licence requires that all off-air recordings or copies of such recordings be labelled as follows:
    
    
    Made only for the University of Waikato's educational purposes:
    Title of broadcast:
    Date of broadcast:
    Date this copy made:
    
    Where any off-air recording or copy is made by digitisation, this information is required where possible to be embedded within the digital recording or copy.
15. Q: Does the Screenrights licence allow the inclusion of excerpts of broadcasts on CD-ROMs issued to students? Or in course materials made available to students via an Intranet? And does it cover film as well as audio?
    A: Yes, to all three questions.
16. Q: What is the position regarding off-air recordings made prior to 1 May 2002 when the Screenrights licence came into effect?
    A: The Screenrights licence is accompanied by a side-letter, in which the Screenrights members undertake not to commence legal proceedings against the Universities with regard to any past off-air recordings. Such recordings were, in any case, permitted under section 48 of the Copyright Act, because there was then no licence agreement in place.
17. Q: How should the words "on the same subject matter " be interpreted, in relation to copying of periodical articles?
    A: I interpret this phrase liberally and literally, as meaning "on the same subject ". Thus, all articles in a subject-specific journal (e.g. Journal of Family Violence) are likely to be on the same subject (family violence). However, the articles in a general journal (e.g. the New Zealand Listener) will not be. This leaves a grey area in the middle, e.g. articles in Scientific American, Nature, Science etc will all be on science, but each will be on a more specific area of science, and I would consider these more specific areas, rather than the broad general subject, to be "the same subject matter ".
    
    Others would argue that no more than 10%-20% of the articles from a journal should be copied at the same time under this provision.
    
    The CLL licence agreement (Schedule 2 para 1.1) states: "The term 'the same subject matter' will be interpreted on a case-by-case basis. For the avoidance of doubt, it is not intended to allow copying of multiple articles from the same issue of a periodical publication unless the content of each of the articles copied is closely related and focusing on a particular aspect of a subject ".
18. Q: Can copyright material be made available for the educational use of students over the Internet?
    A: Section 44 of the Copyright Act (copying for educational purposes) does not apply to Internet access. And section 16(1)(f) states that including a work in a cable programme service is a restricted act. However, the CLL licence agreement allows University staff to make electronic copies from print in-copyright materials, and place these on a secure University server for access by authenticated students and staff involved in a particular course of instruction. In addition, some of the licence agreements signed by the Library for providing access to electronic full-text journals permit articles from those publishers to be included in "electronic course-packs ", normally by linking to the specific full-text articles.
19. Q: Can audio and video material be included in the University's learning management system ClassForum?
    A: It is important to distinguish between copying for educational purposes (sections 44-49 of the Copyright Act), off-air recording, and making material available via the Internet or a closed Intranet.
    
    ClassForum operates over the Internet, and therefore appears to fall within the Copyright Act's definition of "cable programme service " (section 4). And section 16(1)(f) states that including a copyright work in a cable programme service is a restricted act. It follows, therefore, that whether or not the material has been copied in accordance with the provisions of the Copyright Act dealing with copying for educational purposes, the making of such copied materials available electronically via the Internet or an Intranet is not permitted unless prior permission has been obtained from the copyright owner.
    
    Section 45(4)(a)(vi) allows copies of sound recordings (but not videos) to be made for lessons "conducted by correspondence ". Whether or not online distance learning courses are lessons "conducted by correspondence ", it is not permissible to make copies of sound recordings available via a cable programme service such as the Internet.
    
    The exception to this is off-air recordings (both audio and video), or copies of such recordings, which under the terms of the University's licence agreement with Screenrights may be made available to students via the Internet or an Intranet.
    
    The CLL licence agreement does not apply to audio-visual materials.
20. Q: Is listening to a master copy by a number of language laboratory users permissible?
    A: Section 4(1) of the Copyright Act differentiates between a "cable programme service " and a "transmission service ". The latter means "a service that consists wholly or mainly in sending visual images, sounds, or other information by means of a telecommunications system, otherwise than by wireless communication ". And while section 16(1)(f) lists "broadcast the work " as a restricted act, the definition of "broadcast " in section 2(1) also refers to "transmission ... of a programme by wireless communication ... ". If the connections in the language laboratory to the master copy are by wires or cables, then this is a "transmission service " and is permitted. If, on the other hand, the connections are by "wireless communication ", then this may fall within the definitions of "broadcast " and/or "cable programme service " and be not permitted.
21. Q: Is it legal to make a back-up copy of a sound recording or video?
    A: While section 80 of the Copyright Act allows a back-up copy of a computer program to be made for use "if the original copy is lost, destroyed, or rendered unusable ", there is no provision for other media such as audio or video recordings. By strict definition of the law, therefore, the making of back-up copies is not permitted. However, should a court case ensue, I would hope that the judge would be sympathetic to the application of the principles expressed in section 80 to other forms of media. I would stress that for this to happen, the judge would require assurance that the copy from the master was made for this purpose only, and not as a cheap way of having access to two copies of the work - in other words, the master copy should be held in an archival store, with no access to it other than to make another copy if the original copy is "lost, destroyed, or rendered unusable ".
22. Q: Who owns copyright in photographs?
    A: Under section 21(2) of the Copyright Act, copyright in photographs taken by an employee in the course of her/his employment is owned by the employer. If the employer wishes to scan and make the photographs available, that is the employer's right, and may impose whatever conditions it thinks best for the re-use of those scanned images.
    
    Under section 21(3), copyright in photographs commissioned and paid for by a person is owned by that person, unless a contract has been signed which passes copyright ownership over to the photographer.
23. Q: Is it permissible to copy for educational purposes a photograph or illustration that is included in a book?
    A: Section 44(5) of the Copyright Act allows an artistic work (e.g. illustration or photograph) to be copied only if it forms part of the literary work being copied. However, the CLL licence (Schedule 2 para 1.4) allows copying of an artistic work where it is published in a copyright work. You cannot copy a separate artistic work, without first obtaining permission from the copyright holder.
24. Q: Is it legal to use hyperlinks within a distance study package available to students?
    A: There is no copyright in a URL, so there is nothing illegal in providing an electronic bibliography or reading list that includes URL links. The individual student who clicks on those URL links will, if access is permitted, then display the articles on her/his computer screen ( "transient copying ", which is probably legal) and then perhaps either print or download the articles. Such copying is permissible under section 43 of the Copyright Act (copying for research or private study), provided that the provisions detailed in subsections (3) and (4) are observed. Internationally there are proposals to introduce a new copyright "right " - the right of the copyright owner to control the ways in which copyright material is made available; however, there is no such provision in New Zealand copyright law at present.
    
    Most hypertext links included in distance learning bibliographies or reading lists will be to full-text periodical articles included in electronic information services subscribed to by the Library, with access controlled by IP address range or username/password. Where this is the case, access will be able to be provided, and use made, only within the terms of the licence agreements signed by the Library with the publisher, aggregator or vendor.
    
    It is also permissible to include hypertext links to electronic copies of articles copied from print originals under the terms of the CLL licence agreement and made available on a secure University server for access by authenticated students and staff involved in particular courses of instruction.
25. Q: Does copyright law permit real-audio streaming - that is, making up a compilation from a number of compact disks that are required listening for a Music course, and letting students enrolled in that course have access to the compilation through the iMac Laboratory streaming server?
    A: This may be done only with the prior permission of the copyright owner. You should apply through APRA, the Australasian Performing Rights Association (92 Parnell Road, Parnell, Auckland. Fax (09) 379 3205, phone (09) 379 0638, email nz@apra.com.au).
26. Q: Can a PowerPoint presentation include copyright material?
    A: A student may copy copyright material into a PowerPoint presentation only under the Copyright Act section 43, copying for research or private study. Giving a presentation would not be covered by "private study ", but it might be covered by "research ", which does not have to be "private ".
    
    A staff member may copy copyright material into a PowerPoint presentation under section 44(1), which allows copying into either print or electronic format "by means of a reprographic process or by any other means ", provided that "(b) The copying is done - (i) In the course of preparation for instruction; or (ii) For use in the course of instruction; or (iii) In the course of instruction; and (c) The copying is done by or on behalf of the person who is to give, or who is giving, a lesson at an educational establishment; and (d) No more than one copy of the whole or part of the work or edition is made on any one occasion ".
    
    It should be noted, however, that in his High Court Judgment dated 22 February 2002, Salmon J. ruled that copying under section 44(1) must be "for the instructor's purpose of preparing and giving the lesson ", and not for other purposes. Therefore a copy of the PowerPoint presentation which contains copyright material may not be photocopied for students, or placed in the Library's Course Reserve Collection, or copied into an electronic database which is accessible electronically by students (a "cable programme service ").
    
    Staff members may also copy copyright material into a PowerPoint presentation under section 44(3), within the 3% / 3 pages limitation.
27. Q: Can I copy a diagram from another publication into my thesis?
    A: It is permissible to include in a thesis quotations or short extracts taken from another work, under the fair dealing provisions of the Copyright Act (sections 42-43), provided that "such fair dealing is accompanied by a sufficient acknowledgement " (which is, of course, standard academic practice). This would cover a diagram in a book. If the diagram is clearly the work of a third party (that is, reproduced by the author of the book from another work), acknowledgement should be given both to the original source of the diagram, and to the work from which the diagram is being copied. If, however, the diagram has a copyright statement attached to it (normally indicated by a "c " in a circle e.g. ©) then it should not be copied without obtaining prior written permission from the copyright owner indicated.
28. Q: I would like to copy a photograph in a book of a painting held in a London library, and use the copy as the frontispiece to my thesis. What are the copyright implications?
    A: There is copyright in the original painting, which lasts for 50 years after the death of the painter. There is copyright in the photograph of the painting, which lasts for 50 years after the death of the photographer. And there is copyright in the reproduction of the photograph in the book, which lasts for 25 years after the book was first published. So unless both the painter and photographer have been dead for more than 50 years, and the book was published more than 25 years ago, then the photograph of the painting may not be reproduced without permission. And just to complicate matters further, the library that owns the painting may hold reproduction rights. I suggest that, in the first instance, you write to the publisher of the book in which the photograph appears.
29. Q: Some time ago we paid a company to build a website for us. No contract was signed. Who owns the copyright to the web pages? Are we free to use the page design to build other pages?
    A: Section 21 of the Copyright Act 1994 states: "(3) Where (a) a person commissions, and pays or agrees to pay for, the taking of a photograph or the making of a computer program ... and (b) the work is made in pursuance of that commission, that person is the first owner of any copyright in the work.. (4) Subsection 3 of this section applies subject to any agreement to the contrary. "
    
    What this means is that, unless you have signed a licence agreement passing copyright ownership over to the company that built the website, you own the copyright and can use and develop it how you wish. However, if you have signed an agreement passing copyright ownership over to the company that built the web site, then you will have to get their permission.
30. Q: Can we claim copyright without putting a name beside it? For example, we produce client newsletters, we send then to accountants, they brand them as their own, and then send them to their clients. We would still like to claim copyright to the articles and only allow subscribing accountants to use them, but we don't want the University name on the newsletters as then the clients know who writes them.
    A: Under New Zealand law, you do not need to "claim " or register copyright: the Copyright Act section 14(1) states that "Copyright is a property right that exists, in accordance with this Act, in original works ... ". This is different to the U.S., where copyright work is registered.
    
    Under section 21(2) of the Copyright Act, "Where an employee makes, in the course of his or her employment, a literary, dramatic, musical, or artistic work, that person's employer is the first owner of any copyright in the work ". However, this University normally returns the copyright to the author of the work.
    
    The standard symbol for indicating that a work is in copyright is the letter c in a circle (©). There is no obligation to indicate the owner of the copyright, though it is normal to put with the copyright symbol the year, e.g. © 2003.
    
    I should have thought that the easiest way is for you to have a letter of contract with the accountants to whom you send the articles, stating that, while you are happy for them to use the articles in their client newsletters, you are retaining copyright in the articles. A simple letter will suffice to make this claim.
31. Q: We would like to have available in the department, for archival purposes, on CD-ROM the complete readings that were issued to students in previous years. Can we do this?
    A: Neither the Copyright Act, not the CLL licence agreement, allows this. You would need to seek permission from Copyright Licensing Ltd.
32. Q: I would like to show short clips of videos in lectures. The videos will be hired from a video shop, or purchased. Am I infringing copyright by doing this? Also, what happens if I want to include a short clip in an online course?
    A: Section 47 of the Copyright Act allows "The playing or showing, for the purposes of instruction, of a sound recording, film, broadcast, or cable programme ... ", provided that the audience consists of "persons who are students or staff members at an educational establishment or are directly connected with the activities of the establishment ". So unless when hiring or purchasing the video you sign a licence agreement that prohibits this (thereby overriding the Copyright Act), you may show clips of videos in lectures. The same applies to DVDs.
    
    However, the Copyright Act does not permit copies from commercially-published videos or DVDs to be included in a "cable programme service ", which includes an Internet or Intranet service such as an online course.
    
    If the film has been recorded off-air, then the copying and inclusion in an online course is permitted under the University's licence agreement with Screenrights; but this licence applies to off-air copying or recording only, and not to videos or DVDs hired or purchased.
    
    To include clips from commercial videos or DVDs in an online course, permission would need to be obtained from the copyright owner.
33. Q: I am involved in a ClassForum discussion, and would like to cut and paste into ClassForum several of the messages that have appeared recently in a listserve. Will this raise any copyright issues?
    A: Legally, there is copyright in anything published ( "publication " is defined in Section 10(1) of the Copyright Act as "the issue of copies of the work to the public "), and this includes emails and papers on the Internet. It could be argued that, by placing an email on a public forum service such as a listserve, the copyright owner is granting an implied licence to all other users of the service to access and use the material. On the other hand, it can be argued that making use of a person's work that is on the Internet breaches the copyright owner's exclusive right to reproduce the work and determine how it should be used.
    
    Legally, you should probably seek the permission of each person who contributed to the listserve discussion. Morally, you should also do so, as the authors may wish to re-word their statements, or make other changes, if they know these are to be used in a different way and via a different forum.
34. Q: Is it permissible to download music (e.g. MP3 or MPEG files) from the Internet for personal use and load these onto a University computer?
    A: No. It is a breach of copyright law to copy, share, distribute or download any copyright material, whether for private use or for educational purposes, except to the extent that these are permitted either by the Copyright Act or licence agreements signed by the University, unless permission from the copyright owner has first been obtained. If ITS becomes aware that copyright materials have been downloaded to University servers, it is obliged to ensure that these are removed.
35. Q: What is the copyright position regarding copying of copyright material by University administrators, for example for Council or University committees?
    A: Section 44(3) of the Copyright Act states that copyright is not infringed by copying part of a work, if the copying "is done for an educational purpose ", and the copying "is done by or on behalf of an educational establishment ", provided that "the copying is of no more than the greater of 3 percent of the work or edition or 3 pages of the work or edition ". These limits are extended by the licence agreement with CLL, which in clause 2.1 states that "CLL grants to the Licensee the right to copy copyright material for authorised purposes by authorised persons ... ". Clause 1.1 of the licence agreement defines "authorised purposes " as "the educational purposes of the Licensee, including study, research and use in the course of educational instruction "; and "authorised persons " as "the academic and general staff and duly authorised agents of the Licensee ".
    
    In some very limited circumstances administrative copying may possibly be covered by section 42 (copying for criticism, review, and news reporting) or section 43 (copying for research) of the Copyright Act.
36. Q: Is Waikato Print required to ensure that work copied for private study is used for that purpose?
    A: Normally, copying for research or private study will be undertaken by the person wanting it. However, there is nothing in the Copyright Act that prevents someone else making the copy, provided that the "fair dealing " provisions of section 43 are complied with. It may be useful to ask the requester to sign a declaration that the copying is for the requester's own research or private study, and will not be used for any other purpose; and that the copying is in accordance with the provisions of section 43 of the Copyright Act. Only one copy may be made.
    
    Copying for research or private study under section 43 should be distinguished from copying for educational purposes under section 44(1). This latter section allows one copy of all or part of a work to be made, provided that the copying is for the personal use of a person "who is to give, or who is giving, a lesson at an educational establishment ", and is "for use in the course of instruction ".
37. Q: Can Waikato Print copy a chapter from a book for a lecturer, and then in two weeks time copy another chapter from the same book for the same class? And what about copying the same chapter on behalf of a different lecturer for a different class?
    A: The Copyright Act permits repeat copying for educational purposes after 14 days. The CLL licence (Schedule 2 para 1.6) allows "Making a repeat copy from a work within 14 days providing such copying is not made by or on behalf of the same authorised person for the same paper, unit or module of a course of study ". The CLL licence does not prohibit copying of the same chapter on behalf of a different staff member for a different class.
    
    There is nothing in the Copyright Act or CLL licence preventing an academic staff member requesting a second chapter to be copied at a later date for a class (note that this is not "repeat copying "). However, this method could not be used to end up copying the whole of a book. If the whole of an out-of-print book is required, permission should first be obtained from CLL who need to be "satisfied that sufficient copies of that work cannot be obtained within a reasonable time at an ordinary commercial price " (Schedule 2 para 1.5).
38. Q: Can multiple chapters of a book be copied for course-packs?
    A: No. The CLL licence (Schedule 2 para 1.2) permits "Copying of up to 10 per cent of a work (other than an article in a periodical publication) or one chapter of the work, whichever is the greater ". Copying beyond this requires the prior written permission of the copyright owner or CLL.
39. Q: Who owns copyright in an article written by a staff member for a newspaper?
    A: In general terms, copyright in works written by a staff member is owned by that staff member, unless s/he passes copyright ownership over to the publisher as part of the contract to publish the work. To determine copyright ownership of a newspaper article, the staff member should be asked whether s/he retained copyright ownership, or passed this over to the newspaper. If copyright ownership has been passed over to the newspaper, then it is a breach of that copyright to place the article on a website, or to copy it for a course-pack, without obtaining prior permission from the copyright owner.
40. Q: What are Waikato Print's obligations with regard to copying work received from outside the University?
    A: It is the responsibility of the person or organisation requesting the copying or printing to ensure that it does not breach copyright law or any licence agreement that the institution may have - Waikato Print is just acting as the agent of the external person or organisation. However, Waikato Print does have an obligation to try to ensure that copyright laws are not breached - just as it does in related areas such as defamation or obscenity. If there is any doubt, refer back to the requester. You could ask the requester to sign a declaration that the copying is in accordance with copyright law and/or relevant licence agreements.
41. Q: Is Waikato Print permitted to copy photographs from books in print course-packs?
    A: There is often separate copyright in photographs published in books. If the copying is being done under section 43 of the Copyright Act (copying for research or private study), the "fair dealing " provisions of that section apply. If the copying is being done for inclusion in course-packs under the provisions of the CLL licence, then provided that the photograph or illustration is part of a book, its copying is covered by the licence, since the licence (Schedule 2 para 1.4) permits "Copying of the whole of an artistic work (such as an illustration) where it is published in a copyright work and is copied in accordance with the provisions of this Schedule ".
42. Q: Can Waikato Print copy artistic works?
    A: I suggest you think about what the purpose of the copying is, rather than the type of work being copied.
    
    If the copying is for course-packs (print or electronic), or multiple copies to be handed out to students, then the CLL licence applies. Loose maps and charts are specifically excluded from the CLL licence, as are illustrations and photographs published separately from a work (Schedule 3 paras 3 and 7). However, the licence (Schedule 2 para 1.4) permits the copying of the whole of an artistic work (which includes illustrations, photographs, maps and charts) that is published in a work. If the material to be copied is specifically excluded from the CLL licence, then sections 44(3) to 44(7) of the Copyright Act apply.
    
    If the copying is to enable a person (including a student) to prepare for or give a course of instruction, which includes a tutorial or presentation to a class, then section 44(1) of the Copyright Act applies. This section allows one copy of a "literary, dramatic, musical, or artistic work " to be made, and the purpose of the copying must be to assist the person to prepare for or give the course or provide instruction - it may not be used for any other purpose.
    
    If the copying is for research or private study, then the "fair dealing " provisions of section 43 of the Copyright Act apply. Only one copy is permitted.
43. Q: Does the CLL licence apply to students?
    A: The CLL licence (clause 2.1) grants to the University "the right to copy copyright material for authorised purposes by authorised persons in accordance with the terms and conditions of this Agreement ". "Authorised persons " are defined in clause 1.1 as "the academic and general staff and duly authorised agents of the Licensee ". The CLL licence, therefore, applies to copying by students only where the students are undertaking the copying on behalf of and at the direct request of a University staff member.
44. Q: Can a lecturer scan print periodical articles and make these available via ClassForum?
    A: Yes. The CLL licence agreement allows print materials to be scanned into electronic format and made available as an "electronic course-pack " to "enrolled students and staff involved in the particular course of instruction ". The CLL licence covers print-to-print and print-to-electronic copying only: it does not apply to materials that are already in electronic form.
45. Q: Can theses be copied?
    A: Copyright in student theses, dissertations and papers is owned by the student, not by the University. They are specifically excluded from the CLL licence (Schedule 3 para 10), but are covered by the Copyright Act. The whole of a thesis or dissertation may not be copied without the prior permission of the author.
46. Q: Can standards be copied?
    A: Standards may be copied under the terms of the Copyright Act, or (in the case of multiple copies issued to students) under the terms of the CLL licence unless "the copyright owner has prominently stipulated that it may not be copied under any copyright licence " (Schedule 3 para 8).
47. Q: Can academic staff provide links to MP3 sites in the context of academic work / assignments?
    A: There is no copyright in a URL, so it is not illegal to provide URL links to Internet sites. However, a judge might rule that, by providing links to sites without providing a warning regarding use of (including downloading from) those sites, the University could be seen as facilitating (if not encouraging) the possibility of breach of copyright by those who access those sites. A suitably-worded warning notice might be appropriate.
48. Q: Is it permissible to turn a document that is in pdf format into word format, so that it can be played back on a voice synthesizer by a blind student?
    A: Section 69(1) of the Copyright Act allows the making of "copies or adaptations of published literary or dramatic works for the purpose of providing persons who have a print disability with copies that are in Braille or otherwise modified for their special needs, without infringing copyright in those literary or dramatic works ". Section 69(2) sets out the conditions under which copies or adaptations may be made. However, the right to do this is restricted to "A body prescribed by regulations made under this Act ", and the University of Waikato is not one of them. You would need, therefore, to obtain prior permission from the copyright owner, or ask Copyright Licensing Ltd if they are able to grant permission.
49. Q: May a charge be made for print course-packs?
    A: Yes. The CLL licence (clause 2.6) says that "The Licensee may make a reasonable charge to recover costs and overheads incurred by the Licensee in providing copies of the copyright material ". For materials copied under the CLL licence, this overrides section 44(3)(e) of the Copyright Act, which states that "No charge [may be] made for the supply of a copy to any student or other person who is to receive, is receiving, or has received a lesson ".
50. Q: Can I scan a chapter of a book into a word document, then condense it down to about two pages and copy it for my students?
    A: Publishers are very concerned that either print or electronic copies of their publications (books or periodical articles) should be exact reproductions of the originals, with the same typeface, layout, wording, etc. The CLL licence (Schedule 2 para 5) requires that "the material copied is an accurate copy of the original ". It does not permit a staff member to copy a chapter of a work into another format, then condense and/or edit it (so that in effect this becomes a different work to the work that was published), and then make copies of that edited work for student course-packs.
51. Q: Can copies of programmes such as movies be copied from television and made available for students to watch?
    A: Yes - the University's licence agreement with Screenrights allows off-air recordings to be used for the educational purposes of the University. Note that the Screenrights licence applies to off-air copying or recording only - it does not cover videos or DVDs borrowed from video hire shops, or commercially-published videos or DVDs.
52. Q: Can student performances be recorded on video for assessment purposes?
    A: Section 176 of the Copyright Acts states that "Fair dealing with a performance or recording - (a) for the purposes of criticism or review ... does not infringe any of the rights conferred by this Part of this Act ". It is not clear whether a Court would hold that the copying of the whole of a student performance for criticism or review would constitute fair dealing. Certainly, as required by section 171(1), the consent of the student(s) would have to be obtained.
    
    It should be noted that section 177(1), which deals with "Things done for purposes of instruction or examination ", is neither clear nor generous, and applies only "where the lesson is on how to make films or film sound-tracks or relates to the learning of a language or is conducted by correspondence ... ".
53. Q: Can performances be recorded for the personal record of the performers?
    A: A work may be copied under section 43, copying for research or private study, provided that the "fair dealing " provisions of that section are complied with. Section 171(1)(a) states that the consent of the performer(s) is not required if the copy is made for "private and domestic use ".
54. Q: Who owns the copyright and intellectual property in work created by academic staff, e.g. for their online classes?
    A: Section 21 of the Copyright Act deals with Ownership of Copyright. Subsection (2) states: "Where an employee makes, in the course of his or her employment, a literary, dramatic, musical, or artistic work, that person's employer is the first owner of any copyright in the work ". Subsection (4) states that this applies "subject to any agreement to the contrary ". So in terms of the Copyright Act, copyright is owned by the University.
    
    However, in effect the University passes copyright ownership back to the author, so that s/he is able to negotiate directly with publishers regarding publication of the work. The University's Handbook on Research and Outside Professional Activities states (chapter 6 paragraph 7): "Where an author produces a copyright work in furtherance of his or her academic career and privately enters into a contract for the publication of that work with a publisher, that author becomes the automatic and legal owner of the copyright. The University encourages publication and consequently does not claim copyright in books and articles published by organisations outside the University ".
    
    The Handbook on Research and Outside Professional Activities also states (chapter 6 paragraph 2) that "Where research activity is undertaken in the course of a staff member's duties to the University and utilising the University's resources, the ownership of any intellectual property rights arising from the research normally belongs to the University ". This also applies to materials developed for online courses and other e-learning activities (chapter 6 paragraph 8).
55. Q: Can I print out online resources (e.g. from Ebsco or ProQuest databases, or from the electronic version of a journal) to include in print course-packs for students?
    A: This can not be done under the CLL licence, since this applies only to print-to-print or print-to-electronic copying. Some of the licence agreements which the Library has with electronic journal and database vendors allow printing from their databases for print course-packs, while others do not. Some allow you to provide links directly to the resource, either at publication or at specific article level. Other licence agreements do not refer to course-packs at all.
    
    Generally speaking, publishers are more willing to allow wider use of their content than are aggregators like Ebsco and ProQuest. This is because publishers own the copyright in the content they make available, whereas aggregators do not.
    
    Both Ebsco and ProQuest allow you to provide hypertext links from an online bibliography, list of course readings, or setup such as ClassForum or MyWeb, which point the student either to the source publication or to the specific article. By using this mechanism you avoid the need to provide print course-packs altogether.
56. Q: What does the Copyright Act say about material (excluding electronic databases) sourced from the Internet? I know that the CLL licence does not cover this.
    A: The CLL licence (Schedule 3 para 1) specifically excludes "Works downloaded from the Internet ". The Copyright Act makes no mention of the Internet. This will be addressed by planned amendments to the Act.
    
    You cannot assume that, because a work is made available via the Internet, there is no copyright in that work. In fact, the reverse is true - you should assume that there is copyright in anything made available on the Internet, unless the copyright owner has specifically stated that copyright in the work is waived or is in the public domain, or unless the author has been dead for more than 50 years. There is no implied licence to copy, just because materials have been made available on the Internet.
    
    Further information is given in my Copyright Guidelines for Academic Staff and Students.
57. Q: If we buy a DVD, can short clips from it be put onto video for use in teaching? At present, most teaching rooms are set up for video but not for DVD.
    A: Section 45(2)(a) of the Copyright Act allows films (which include videos and DVDs) to be copied for educational purposes only "where the lesson is on how to make films or film sound-tracks ". The CLL licence excludes films. This means that you would need to obtain permission from the copyright owner if you wish to make a copy of all or part of a DVD for educational purposes. I understand that format-shifting is to be dealt with in planned amendments to the Copyright Act.
    
    That said, I imagine that a judge would view sympathetically (I would, if I were a judge!) the transfer of all or part of a film from DVD to video format if the sole purpose of doing this is to enable you to show the film to a class, and provided that the video is wiped clear after the class has been given.

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