Intellectual property policy

1. Purpose

The purpose of the Intellectual property policy is to provide a framework to identify, manage and support the intellectual property (IP) rights and assets belonging to the Library and/or third parties.

The policy reflects the Library's public interest commitments to maximize access, engagement and re-use of intellectual property whilst also supporting and respecting the rights of creators. The policy outlines the application of intellectual property law to the Library's operations.

2. Scope

The policy focuses on copyright and moral rights as these are the areas of intellectual property law most relevant to the Library: other areas that may require consideration include trademarks and design, and the collective rights of Indigenous communities. The policy applies to all employees, contractors and volunteers.

3. Definitions

Copyright protects material such as books, designs, films and sound recordings, photographs and unpublished works (such as personal diaries and letters). Copyright protection in Australia is automatic. Copyright protects the expression of ideas – it does not protect ideas.

A single work may comprise several copyrights; for example, copyright in a literary work may also include the publisher's rights in relation to typography and layout, or artwork in the cover. In the majority of cases, the duration of copyright, extended as a result of the 2005 Australia United States Free Trade Agreement, will be 70 years, taken from the death of the author (plus 70 years) for works published during the author's lifetime, or 70 years from the first publication, performance or broadcast if this occurs following the death of the author. The duration for crown copyright has remained at 50 years from either the year of first publication or making. Significantly, the duration of copyright in any unpublished material is effectively indefinite.1

Copyright ownership bestows exclusive rights over: reproduction, publication, communication, public performance and adaptation (which includes translation). Some of these rights may differ according to the type of work.

Creative commons is an international open licensing system for copyright owners and users of copyright material: it is relatively intuitive and combines a readymade legal and technological infrastructure for six different licences. All licences require users to attribute the work as specified by the licensor; however, some may restrict derivative use or commercial purposes. The licence recommended for use by Victorian Government agencies is CCBY 4.0, which is an attribution only, international licence.

Crown copyright is the term which applies to copyright owned by Commonwealth, state and territory governments granted under the Copyright Act 1968 (Cth). Crown copyright includes the general prerogative (and perpetual copyright) applying to legislation and specific provisions which deems the Crown owns copyright in works made 'by or under the direction or control of the Crown, where copyright would not otherwise subsist'.2

Intellectual property is a divisible property right. It covers a wide range of intangible materials which are the result of the creative and intellectual effort of individuals and organisations. This includes inventions, literary and artistic works, computer programs, databases, performers' rights, broadcasts, films, sound recordings, plant varieties, trademarks and designs. These are all recognised and protected under Australian legislation; in addition, common law applies to confidential information (trade secrets). IP protection may be automatic (for example, copyright) or require registration (for example, patents). More than one type of IP may apply to the same creation.

Moral rights were introduced as additional rights in 2000. Moral rights are designed to protect the integrity and attribution rights of authors of literary, dramatic, musical and artistic works, and directors, producers and screenwriters of film. These rights generally last for the author’s lifetime plus 70 years, and they cannot be assigned or bequeathed by will, although the author may consent to waiving these rights. There are three moral rights: the right to be identified as the author (right of attribution); the right not to have the work falsely attributed to another person (right against false attribution); and the right not to have the work treated in a derogatory manner (right of integrity).

Orphan works are works protected by copyright but whose owner cannot be identified and/or located: while using orphan works without consent will constitute an infringement, many cultural institutions are developing risk management strategies to deal with orphan works in their collections, particularly for digitising purposes. In this respect, the Library complies with and supports industry standards developed by Australian peak bodies, including the National and State Libraries Australasia, and the Australian Library and Information Association.

Statutory exceptions included in the Act enable certain activities to be undertaken that would otherwise constitute an infringement. The major exceptions impacting on libraries are fair dealing3 and the libraries and archives exceptions.4 Australian fair dealing, unlike the United States fair use exceptions, is quite limited and only applies to the following activities: research or study; criticism or review; reporting the news; giving of professional advice by a lawyer, patent attorney or trade mark attorney.

The libraries and archives exceptions enable libraries to undertake (within specified parameters) preservation and replacement copying, copying and electronic delivery of articles, copying for administrative purposes, copying of certain old, unpublished works and copying culturally significant works without prior permission from the copyright owner.

Trademarks are 'signs used, or intended to be used, to distinguish goods or services'. A trade mark can be any 'letter, word (including an abbreviation), name, signature, number, phrase, sound, smell, shape, logo, picture aspect of packaging, shape, colour, sound or scent, or a combination of all these things'.5 A registered trademark can potentially last indefinitely: the initial registration period for a trademark is ten years, with subsequent renewals available every ten years, provided the connection between the trademark and the goods or services remains relevant. The State Library's 'What's your story' and logo is a registered trade mark.

Traditional knowledge refers to tradition-based IP and includes knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity. According to the World Intellectual Property Organisation, traditional knowledge includes knowledge systems, creations, skills, innovations, signs, symbols and cultural expressions which have generally been transmitted from generation to generation; pertains to a particular people and territory; and are constantly evolving in response to a changing environment.6

4. Roles and responsibilities

4.1 Employees, contractors and volunteers

It is the responsibility of all employees, contractors and volunteers to understand how IP applies to their work and to follow the appropriate procedures in order to uphold the intellectual property rights of the Library, third parties, and to protect the Library from the consequences of infringement.

4.2 Copyright Officer

The Copyright Officer will provide guidance to Library staff and members of the public on copyright issues.

The Copyright Officer will manage requests for the right to use Library IP and copyright licensing agreements on behalf of the Library, including statutory licence agreements.

The Copyright Officer will work to ensure such agreements are valid and appropriate to the circumstances and may, at times, refer issues to external legal experts for clarification and advice.

The Copyright Officer will promote and administer the Victorian Government's IP Policy Guidelines: this includes establishing and maintaining a 'significant IP asset register' and monitoring and advising on the application of Creative Commons licences.

The Copyright Officer will report to Leadership Team on an annual basis on the performance and management of IP to ensure accountability and enable on-going improvements, and report on an ad hoc basis on any specific issues, such as developments in IP law that impact on the Library, or alleged infringement of a third parties IP rights by the Library.

5. Policy

5.1 Rights of ownership – copyright

The Library will own copyright in all works produced by Library employees as part of their employment in accordance with the Copyright Act 1968 (Cth) ss 176,177, 178, and Victorian Public Sector requirements (unless otherwise agreed and stated in writing).

Copyright in all works produced by volunteers as part of their voluntary services will be assigned to the Library prior to commencement of voluntary work in accordance with the Volunteer charter (unless otherwise agreed and stated in writing).

The Library will negotiate a royalty-free, perpetual, non-exclusive, worldwide and irrevocable licence to use IP created under a procurement agreement, or created in conjunction with the Library or as part of a Library-funded activity or research project.

All parties will identify each owner’s respective rights (background and foreground IP) and obligations in a written agreement prior to the commencement of the research or work on the funded project.

Ownership of copyright created under a procurement agreement, or Library-funded activity or research project will only be acquired where the Library has a specific purpose for the use of that IP that cannot be achieved under a licence.

The Library will include intellectual property ownership, rights and management clauses in all 'invitation to tender' or 'RFI' or similar documents. This may include a confidentiality clause to protect any confidential information, or information that is the subject of a patent registration, provided or received as part of the tender process.

5.2 Moral rights

The Library will make all reasonable efforts to acknowledge and protect the moral rights of authors of copyright works.

If the Library intends to modify or adapt a work in any way all reasonable steps must be undertaken to consult with the author and obtain a written agreement to approve such actions through a waiver of their moral rights.

5.3 Traditional knowledge and intellectual property

The State Library acknowledges the importance of Traditional knowledge and IP rights, observing the moral, intellectual and cultural rights of Aboriginal and Torres Strait Islanders as owners of their cultural heritage. Collection, provision of access to, use and re-use of content that is owned by individuals or communities will be undertaken in a culturally sensitive, inclusive and appropriate manner.

5.4 Identification, recording and protection of IP

The Library acknowledges that effective management of IP requires an awareness of the IP assets owned, controlled and used under licence or agreement.

The Library will establish and record details of significant IP assets. Significant IP will be determined by 'a common sense approach' taking into account monetary value, operational requirements and objectives, reputational impact (if the IP is mismanaged), investment in resources/expenditure, relevant legislation, policy or accounting standards, and commercialisation potential. The Library's IP asset list will include, for example, the registered trade mark 'What's your story' and logo.

The Library will aim to clarify IP details and negotiate any required permissions (such as digital reformatting for preservation and access) during the acquisition process. These details will be recorded (and updated) in the appropriate provenance records, contract files and/or MARC fields.

Library-owned IP should be identified as such to maintain and promote the Library's ownership and to prevent (where possible) inappropriate use and infringement. The Library will also publicise the existence of its IP rights by including a relevant attribution on its published products.

The Library will, to the best of its ability, provide statements on copyright and access rights for IP owned by others which is managed or held by the Library (for example, collection items, and exhibition loans).

Intellectual property risks will be considered and managed in accordance with the Library's overall risk management framework.

The Library will take appropriate action in the event of an infringement of IP rights held or managed by the Library.

5.5 Use of the Library’s intellectual property

The Library encourages and promotes open access and re-use of its IP in return for appropriate acknowledgement of author/s rights (where known) and the Library as the source.

Unless there is a good reason not to do so, the Library will endeavour to grant rights to its IP to the greatest extent possible.

Where appropriate, the Library will apply a Creative Commons licence to IP created by the Library and/or other agencies of the Victorian Government to comply with the Whole of Victorian Government Intellectual Property Policy (Version 1), March 2015. This may include, for example, IP created by the Library’s employees, volunteers and contractors; IP created by other Victorian Government agencies deposited within the Library (for example, photographic records from the Melbourne and Metropolitan Board of Works).

While recognising the Creative Commons Attribution (CC BY 4.0) licence as the preferred option for Victorian Government IP, the Library will exercise its right to apply any of the six Creative Commons licences.

The Library may also choose to exercise its IP rights restrictively and without reference to Creative Commons. Such decisions may be influenced by a number of factors such as: privacy, public safety, security, public health, commercialisation, compliance with the law or cultural sensitivity.

Before granting any rights to IP material, the Library should confirm that it does own the rights.

5.6 Use of third party intellectual property

The Library will use IP owned by others in accordance with IP law (or contractual agreement), and ensure that either the use does not require permission or appropriate permission has been obtained, and/or follows standard industry practices (for example, using orphan works).

While the IP rights in the state collections largely reside with third parties, any licensing agreements governing the use of such materials will include a creative commons option. In such cases, the licensor may nominate the specific licence to be applied to their IP.

5.7 Disposal of intellectual property

As intellectual property owned by the Library may be subject to the Public Records Act (1973), the Library will seek advice from the Public Record Office of Victoria prior to any disposal.

5.8 Educating Library staff about intellectual property

The Copyright Officer will provide information outlining the principles of intellectual property rights and relevant guidelines: this will be updated as required. All staff and volunteers are encouraged to attend relevant workshops and seminars and to direct enquiries to the Copyright Officer.

6. Related Documents – legislation, policies and guidelines

Library policies and procedures

7. Forms

Recording permissions
Deed of Gift, Deed of Gift Cultural Gifts Program, Deed of Gift Copyright

Notes

1. Hudson, E and Kenyon T, 2005, Copyright and cultural institutions: guidelines for digitisation, University of Melbourne
2. Crown copyright is covered under ss 176 – 183E of the Copyright Act 1968 (Cth)
3. The fair dealing exceptions are covered under ss 40-42, 43(2), 103A-103C, 104(b), (c) of the Copyright Act 1968 (Cth)
4. Libraries and archives exceptions are covered under ss48-53, 110A, 110B, 203A-203H, 200AB of the Copyright Act 1068 (Cth)
5. Marettt Leiboff, 2007, Creative practice and the law, Lawbook Company, New South Wales
6. http://www.wipo.int/tk/en/tk/