BVA103: Task 4 (Week 8)

Getting permission to use copyright materials
Generally, if you want to use someone else's work (such as text , music or a photograph), in a way that copyright exclusively reserves to the copyright owner (such as copying or uploading onto a website) you need permission. In some situations, permission to copy someone else's material is not needed also if a work's copyright has expired doesn't require any permission. Merely acknowledging the creator or the source of the work is no defense to a claim of copyright infringement. You still have to get permission. Merely acknowledging the creator or the source of the work is no defense to a claim of copyright infringement. You still have to get permission.

If a copyright exception applies
The Copyright Act 1994 provides for many situations where permission to use
copyright works is not required. These include:

• Fair dealing for research or private study or for criticism or review. See our information sheet Fair dealing

• Exceptions for educational uses. See our information sheet Copyright & education

• Exceptions for public administration. See our information sheet Copyright & public administration.

If a collective licence applies
If your organisation has a copyright licence with a copyright collective, it is possible
that your intended use is covered under that licence. This means that you'll need
to get permission directly from the copyright owner. The following organisations are
copyright collectives:

• Copyright Licensing New Zealand (CLNZ), which represents authors and publishers in providing licences to institutions that reproduce copyright material from books and journals.

• Australasian Performing Right Association (APRA), which represents songwriters and music publishers in providing licences to broadcast and publicly perform music in public, such as in shops, restaurants and other businesses.

• Recorded Music NZ which represents artists and recording labels in providing licences to broadcast and publicly perform sound and video recordings.

• OneMusic is a joint initiative between APRA and Recorded Music NZ (previously PPNZ Music Licensing), offering a single music licence to businesses and organisations using music in public. A OneMusic licence covers the combined membership and repertoire of APRA and Recorded Music NZ.

• Screen rights, which represents copyright owners in film, television and radio in providing licences film, television and radio works for use by educational institutions.

It is recommended that you always obtain permission from the copyright owner in writing. Although a formal legal contract is not always necessary, it is sensible to at least exchange letters or e-mails. Keep copies of all your communications to and from the copyright owner, to ensure there is a record of the agreement. Before contacting the copyright owner, you should check that your proposed use is not covered by a collective licence provided by a collecting society.

______________________________________________________________________

Infringement of copyright

A person who "authorises" someone else to infringe copyright will also infringe copyright. Courts have said that to authorise means to "sanction, approve or countenance" the infringing conduct. A person may authorise infringement by telling someone else to do something that amounts to infringement, or by permitting the use of equipment (such as a photocopier or CD burner) to infringe.

In some situations, people are allowed to use copyright material without permission. The Copyright Act contains some exceptions or defences to infringement which allow certain uses of copyright works, for example, fair dealing for the purpose of research or private study, criticism, review or news reporting. There are also special provisions for libraries, educational institutions, public bodies and for other uses.

When is copyright infringed?

The rights of the copyright owner

• In New Zealand, the Copyright Act 1994 gives copyright owners the exclusive right to deal with their material in certain ways, including the right to copy it, to communicate it to the public (for example, by making it available on a website or e-mailing it), to perform, play or show certain types of copyright material "in public" and to adapt certain types of material.

Infringement

• Copyright is infringed when a person uses all, or a "substantial part" of copyright material in one of the ways exclusively reserved to the copyright owner, without the permission of the copyright owner, where no defense or exception to infringement applies.

What is a substantial part?

• A substantial part is any important or distinctive part of the original material. There are no guidelines about the quantity of material or percentage of a work which may be used without permission ? it is a matter of fact and degree in each case. However, it is often said that it is the quality of what is taken, rather than the quantity that matters. It may be enough to infringe copyright by reproducing a very small part of another person's work, for example by reproducing a few bars of music from a musical work.

Coincidental similarity does not infringe

• If someone creates a copyright work that is very similar to yours, but the similarity is coincidence and they have not copied your work, then there is no copyright infringement. For copyright infringement to occur, there must not only be a similarity between the two works but also some evidence that the similarity results from copying, either directly or indirectly.

______________________________________________________________________

Moral Rights

Under the Copyright Act 1994, creators have certain moral rights in relation to works or films they have created. Moral rights are often referred to as “personal rights” and are separate from copyright rights. Moral rights remain with the creator, even when copyright is owned by someone else.

Moral rights give creators:

• the right to be identified as the author of the work, or director in the case of a film (right of attribution);
• the right to not have a work falsely attributed to them; and
• the right to object to derogatory treatment of the work (right of integrity).

Moral rights belong to authors of:

• literary works, including novels, screen plays, poems and song lyrics;
• dramatic works, including dance, mime and film scenarios or scripts;
• musical works,
• artistic works, including paintings, drawings, diagrams, maps, engravings, etchings, photographs, sculptures and architectural works.

Moral rights are also enjoyed by directors of films made on or after 1 January 1995

(even though copyright is usually owned by film producers).

The right to be identified is not infringed unless the creator has first “asserted” the right. The right to be identified should be asserted in writing, preferably in a commissioning agreement or an agreement transferring or licensing copyright to another person. However, the right may be asserted in any other written form, at any time. An artist can assert his or her right to be identified by including their identification on the artistic work before giving the physical item to an exhibitor.

The rights of attribution, integrity and of privacy in certain photos and films, lasts for the duration of the copyright protection for the work. The right relating to false attribution lasts until 20 years after the death of the creator.