This page was last revised 3 November 2010
Digital content is made to be copied, distributed and adapted. The ability to incorporate and re-use content in new works provides enormous creative opportunities. On the other hand, adapting non-digital models of rights and usage to a digital environment can be challenging. Good practice needs to be built around encouraging users to respect clear rights and licence statements that focus on permitted behaviour, providing value that does not rely on controlling copies, and thinking carefully about putting restricted content online.
Make it Digital has four detailed Enabling Use & Re-use guides:
The ease at which content can be created, copied and distributed using digital technologies, has had a massive impact on traditional print, sound and moving image publishing.
Pre-digital publishing models traditionally relied almost entirely on the ability to control copies of their content (books, records, film reels etc) in order to control their copyrights. The arrival of CD-burners and MP3 players, followed by broadband internet, directly undermined this. These and other emerging digital technologies create dilemmas about how to manage copyright in a time where the cost of copying is almost zero, and where the internet by its very functioning constantly makes and publishes copies of content.
If you are a digital content creator or publisher, you need to know the basics of copyright and to have thought realistically about how you want customers or users to access and use your content. If you work for an organisation that collects or owns content that might be of value or interest to your customers or the public, you need to have good information about copyright and a process to check or clear usage rights for that content. If your organisation is a non-commercial archive, library or body holding content of historical or public significance, you also have additional rights and responsibilities under the law involving copying and access for digital content. Your first step is to learn the basics of what copyright is.
Copyright was originally recognised in a 1709 English law, the Statute of Anne, which gave protections to both authors and purchasers of printed books. Modern copyright law has since expanded to cover a wide variety of creative works, and has the 1886 Berne Convention and the World Intellectual Property Organisation as the main points of international reference.
In simple terms, a copyright is an internationally recognised legal protection under the New Zealand Copyright Act 1994 that gives someone, usually the creator or publisher, an exclusive right for a set period of time to copy, distribute, show, perform, communicate or adapt an original work. They also have the exclusive right to licence that work to someone else for those purposes. When that time expires, the legal protection ends and anyone can copy, distribute, show, perform, communicate or adapt the work. An original work does not have to be novel or unique to any great degree, but it does need to be more than a mere copy of another work. Unlike the United States, there has never been a requirement for copyright registration or renewal in New Zealand. Protected works are automatically covered by the Copyright Act 1994 and do not need a copyright symbol or statement to gain protection.
Depending on the kind of work (literary, dramatic, artistic, sound, film, software etc), when it was created, and when it was published, the set period of time for the right will vary. There is no one rule, and in the case of older materials, the terms of more than one New Zealand Copyright Act may apply.
A copyright licence is a legal means of a copyright holder giving permission to someone to copy, distribute, show, perform or adapt an original work. As a rule, unless you have a licence, you cannot lawfully do these things. However there are some exceptions. Incidental copying, and fair dealing for criticism, review, reporting, research or private study does not require a licence. In certain circumstances, copying for educational or parliamentary use, or by libraries and archives, also does not require a licence.
A licence can be exclusive or non-exclusive. An exclusive licence means no one else will or can be granted a licence for the same purpose. For instance an article submitted to a magazine may be licensed exclusively so that the copyright holder cannot submit it to a competing publication. A non-exclusive licence means the copyright holder may grant another licence to someone else, and may even do so on different terms e.g. for commercial or non-commercial uses.
Copyrights are not the only usage rights to consider for digital content. Some content – such as logos or designs – may be protected by the Trade Marks Act 2002 or the Designs Act 1953. Use of identifying or personal information or images may be restricted by the Privacy Act 1993, requiring permission from the identified individuals. There may be customary, cultural or human rights that are protected by common law, treaty or international undertakings by the government on behalf of New Zealand. There are also restrictions on publishing and use of indecent or obscene content under the Films, Videos, and Publications Classification Act 1993.
Property rights are commonly used as a means to control use of digital content, whether covered by copyright or not. Unless property rights have already been assigned to someone else, the legal owner has the right of possession, and can control access to or disposal of their property through contract or agreement. Where this applies to content that has no copyright protection, e.g. because the copyright has expired, contract conditions that are in the nature of copyright (such as prohibiting distribution or adaptation) however may not be legally enforceable.
New Zealand copyright law is based on the United Kingdom law, with the three major New Zealand copyright Acts in the last 100 years (1913, 1962, 1994) introduced following the UK Acts (1911, 1956, 1988). While New Zealand copyright law has more in common with the UK law than it does with current Australian and United States laws, the terms for copyright and the coverage are not always the same. For instance an amendment to the UK Act in 1996 extended the coverage of copyright to the life of the author plus 70 years, yet in New Zealand it remains the life of the author plus 50 years. These differences can be important when searching for international examples of common law or guidance.
New Zealand time limit
Literary, dramatic, musical and artistic works
50 years beyond the death of the author
Commercialised product designs (Artistic work that has been applied industrially)
Publisher’s copyright (typographical layout of a published edition)
25 years from publication
Sound recordings and film
50 years from the year in which the work was made
Communication works including repeats
50 years from the initial broadcast or transmission.
Length of NZ copyright. Source: Intellectual Property Office of New Zealand website
In general, the New Zealand time limits apply for all in copyright material from the start of the 1994 Copyright Act, which was 1 January 1995, but there are some exceptions. For instance, an unpublished work made between 1 April 1963 and 1 January 1995 where the author died before 1 January 1995, will remain in copyright for up to 75 years beyond the author’s death. Material still under Crown copyright before the start of the 1994 Act became protected for 100 years from the date of creation, rather than for 50 years under the previous Act.
Digitisation has been one of the most popular approaches to digital content creation for organisations dealing with older heritage materials. Image scanning technology has been widely used for digitising text and photographic content, while sound and video archivists have used digitisation as a preservation technique for some time.
Due to the age of some of the heritage material being selected for digitisation, the current copyright terms may not be relevant. For example, New Zealand photographs taken before 1945 are out of copyright, because until the start of the current Copyright Act in 1995, the terms of protection was only 50 years from creation. The same 50 year term applied to Crown copyright material, whether published or not. Broadcasts made before 1 April 1963 were not covered by copyright, although recordings made of them at the time were copyrighted for 50 years.
Material of a similar age may have a greatly differing term of copyright. For instance, all New Zealand sound recordings made over 50 years ago, unless made by the Crown, are out of copyright. Literary, dramatic, musical, or artistic works created 100 years ago may still be in copyright if the creator died less than 50 years ago, although for photographs this only applies to those taken after 1945. Any unpublished literary, dramatic, musical, or artistic works (other than photographs) created by unknown authors before the start of the 1994 Copyright Act, remain in copyright until at least 2046, while published works by unknown authors can be assumed to be out of copyright after 50 years. Finally, donors that own the copyright on unpublished material donated to archives, libraries and certain other public institutions may stipulate conditions of use that apply permanently as if still in copyright. This can mean that some material may never be legally published.
Digital technology has now extended to the area of preservation of archival materials. Copies for use may be required to prevent damage to fragile items, or materials such as audiotape or videotape may need to be replaced entirely. The 1994 Copyright Act allows archives and libraries to make digital copies of materials under these circumstances, as long as they meet these four criteria:
the original item is at risk of loss, damage, or destruction
the digital copy replaces the original item
the original item is not accessible by members of the public after replacement by the digital copy except for purposes of research the nature of which requires or may benefit from access to the original item
it is not reasonably practicable to purchase a copy of the original item.
This allows many out of publication works that are at risk of loss to be digitised and made available to the public for purposes of fair dealing.
A lot of copyrighted digital content has been the subject of debate in relation to the United States legal doctrine of fair use, as the U.S. copyright law allows for interpretation by the courts. In New Zealand, the equivalent copyright provisions relate to fair dealing, and are in parts more prescriptive than the U.S. law. Fair dealing is allowed with some conditions for criticism, review, news reporting, research and private study. There are also a range of permitted copying uses for educational and parliamentary purposes and by libraries and archives. The Copyright Council of New Zealand provides a summary of these uses in their 2009 factsheet on fair dealing.
The term public domain is a general concept that can be applied to a range of things that are freely available or visible to the public. In the context of copyright, public domain is used to describe material that has no legal protection. If there is a law protecting or preventing its access or use, such as the Copyright Act, the Privacy Act, or the Films, Videos, and Publications Classification Act, then that material is not in the public domain. In New Zealand, this can make it hard for a creator of content to permanently give away their material for free use, as by law they still retain copyright for the term set out in the Copyright Act.
Due to the multiple changes to copyright protection in the last 100 years, it can also be complex to identify what content is out of copyright and in the public domain. If you are faced with this complexity, a good place to start is to separate out the different types of content covered by copyright, trademark and other relevant laws. The main ones are:
Some content may have more than one kind of protection, for example a magazine may have typographical arrangements, trademarks, photographs, artistic works, literary works and personal information.
Identify who created it. In a lot of cases you will either know who did or did not create it from the outset. However, information can be identified from context, such as whether the material is part of a series or is with other content of known origin. The creation date can also help establish a creator. If the history or ‘provenance’ of the material is known, this can allow for an educated guess. If the creator is not from New Zealand, you should also expect that the copyright term in the country of origin may be different to that in New Zealand.
Although a specific year is ideal, even narrowing it to a decade or quarter century can be useful. There are various techniques available for dating, focused mainly on the subject matter or the physical medium. If the creator is known, there may be information about when they were making this kind of content. Film and tape stock brands, bindings and paper stock, ink and paint colours, and even markings or designs of the containers or frames are useful physical indicators.
Identify if it has ever been published or exhibited in public, and in which year. Unpublished material may have different protections from published material. As with finding the creator, the context and history of the material can offer clues. Unless there is evidence of publication with the material, research may be needed to find references such as reviews, launch advertisements or commentary.
If it has been published, knowing the publisher and whether the creator was likely to have been employed by them will be important. In many cases an employer automatically acquires copyright, and this includes government departments and other agencies of the Crown. However, novelists, journalists, academics, film producers, musicians and others often retain the copyright or license the rights for a fixed time or purpose. Knowing the publisher can be a good starting point for identifying the last copyright owner.
Once you have as much of the above information gathered as possible, you are in a good position to establish copyright or public domain status, and whether other legal protections such as privacy affect the content.
Material that can be clearly assessed as out of copyright will be the easiest to make available or adapt digitally. You are then likely to be left with material that is clearly still in copyright, and material where the author or rights holder is unknown. Such material needs to be treated differently from out of copyright material.
If you want to publish material digitally for your users to copy, adapt and re-use in any way they like, they need to be provided with some assurance about usage from you as the publisher. This can be done through a disclaimer or through a certification.
A disclaimer is the most common approach to out of copyright material. The Flickr Commons project has required participating institutions to make their own disclaimer statement in relation to the “no known copyright restrictions” tagline that appears alongside the Commons photos. The rights statements can be found on this page. In most cases they stop short of stating that an item is out of copyright. The wording of British, Australian or New Zealand disclaimers are likely to be more applicable to New Zealand situations than other disclaimers.
A certification is appropriate where the publishing history and origin of the material is well known. Crown copyright material created before 1945, photographs taken before 1945 that are not subject to donor restrictions, published material from authors known to have died more than 50 years ago, and material such as parliamentary debates may all be suitable to be certified out of copyright. Creative Commons offers a Public Domain Mark for such materials. The use of this internationally is expected to steadily grow in the next few years. As it is not a licence this can be readily used in New Zealand without further adaptation.
We have developed a downloadable resource that outlines copyright terms and the public domain in New Zealand to make identification of out of copyright materials easier. DigitalNZ is also developing a series of workflow tools for establishing copyright status. The first of these is a flowchart to determine the New Zealand copyright status of photographs.
Use of digitised material that is still in copyright beyond fair dealing may require a licence from the copyright holder. If you are not the copyright holder, you cannot create a new copyright licence, even if you are the original creator or its current owner. You need to be able to trace the copyright owner and arrange for a licence or permission to copy.
A copyright licence or permission assigning rights should be in writing. The Australian Copyright Council, sister organisation to the Copyright Council of New Zealand, provides a free information sheet for people looking to assign rights for their content. They suggest that any agreement should clearly identify the parties and the material involved, the owner of the copyright, the duration of the agreement including publication timeframes, and what attribution or credit the copyright holder requires. Other matters such as prohibiting assignment of the rights to someone else, and a termination clause if things go wrong may be considered. The agreement should be signed by both parties, so if you are planning to use a letter, create two signed copies and ask the other party to sign and return one of them. The information sheet is available in PDF format.
If a copyright holder expects to issue multiple licences or manage many requests for use, a copyright collective such as Copyright Licensing Limited or other rights management agency may be used. Creative Commons Aotearoa New Zealand offers both an alternative and complementary licensing approach. Creative Commonsworks well to identify permissions particularly when the copyright holder wants an item to be available publicly to anyone under the same conditions.
Material that is likely to be in copyright, but the creator and copyright owner cannot be identified is often the most difficult to deal with. If there is no known copyright owner for published materials, there is provision for some materials to be made available provided that it can be established that the authorship is unknown.
The Copyright Act 1994 allows that if a published literary, dramatic, musical or artistic work is of unknown authorship, copyright expires from the end of the calendar year 50 years after it is first lawfully made available to the public. In these cases, the person wanting to identify the author must have failed to do so after ‘reasonable enquiry’. Reasonable enquiry is not a term defined in the Act, but will almost certainly involve a documented effort on your behalf to trace the author through researching sources such as:
The contents of this guide do not constitute legal advice and DigitalNZ is not responsible for any loss or damage caused as a result of following it. You should seek advice from a suitably qualified professional about specific issues.