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, navigating copyright in a digital environment can be challenging.
We suggest 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.
This section talks you through the basics of copyright, and then sets out the steps you need to follow in order to clear copyright before making digital items available for re-use.
Make it Digital has four detailed Enabling Use & Re-use guides:
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 to permit people to access and use your content. In other words, you need to learn how to manage and license your copyright.
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.
At its most basic, copyright is the right to control the copying of one's work (hence, 'copy-right'). 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. The copyright holder also has the exclusive right to license that work to someone else; that is, to give permission for them to copy and re-use the work too.
Copyright is unregistered; that is, the law grants copyright automatically upon the creation of the work. You don't have to apply for it, and no one keeps a record of who owns the copyright to which work. Protected works do not need a copyright symbol or statement to gain protection. The fact that copyright ownership is often poorly documented can lead to some tricky logistical problems when you're trying to track down who might own the copyright to a particular work.
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 copyright to last will vary. There is no one rule, and in the case of older materials, the terms of more than one part of the New Zealand Copyright Act may apply.
Once copyright expires, the work enters the public domain and may be copied by anyone for any purpose. In the context of copyright, the term '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.
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A copyright licence is a legal means by which a copyright holder gives permission to someone else to copy, distribute, show, perform, or adapt an original work; often in exchange for a fee. As a rule, unless you have a licence, you cannot lawfully do these things without receiving explicit permission from the copyright holder first. Because digitisation involves the act of copying, if you want to make a digital copy of a work that is in copyright then you must have either a copyright licence or explicit permission in writing from the copyright holder, who may or may not charge you a fee.
However, there are some exceptions. The law allows for what it calls "fair dealing"; that is, circumstances under which you can make copies of someone's work without their permission. Fair dealing includes copying for purposes of criticism, review, reporting, research, or private study; neither these nor incidental copying require a licence (or the payment of any fees). In certain circumstances, copying for educational or parliamentary use, or by libraries and archives, also does not require a licence (for example, if you need to make a copy in order to preserve the original item - see below). The Copyright Council of New Zealand provides a summary of these uses in their factsheet on fair dealing.
See below for more information on how you can give people permission to use your content by licensing your copyright.
Making copies may be required to prevent damage to fragile items, or materials such as audiotape or videotape may need to be replaced entirely. Under these circumstances, the Copyright Act allows archives and libraries to make digital copies without permission from the copyright holder, as long as they meet these four criteria:
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.
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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) may not be legally enforceable.
Before you set about digitising your content and making it available online, you need to clear the rights in that content. Here are six steps to help you through that process.
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. The main types of content are:
In a lot of cases this information will be explicitly stated in the work. If it isn't, some 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, be aware that the copyright term in the country of origin may be different from that in New Zealand.
Although knowing the specific year of creation 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. Knowing when the material was created will help you determine whether it is still in copyright, or has entered the public domain.
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
Our downloadable guide to copyright terms in New Zealand goes into more detail.
Identify whether the work has ever been published or exhibited in public and, if so, in which year. Unpublished material may have different protections from published material. As with finding the creator, if this information is not immediately obvious then 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 the work 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 being out of copyright - and therefore in the public domain - 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.
Using the disclaimer "no known copyright restrictions" is the most common approach to out-of-copyright material. If you want to go into more detail, the NZ Government suggests the following disclaimer for use by publicly funded institutions:
"To the best of [name of agency]’s knowledge, under New Zealand law:
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 free Public Domain Mark for such materials.
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 free workflow tools for establishing copyright status. The first of these is a flowchart to determine the New Zealand copyright status of photographs.
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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 grant a copyright licence, even if you are the original creator or the work's current owner. You need to be able to find 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.
If a copyright holder expects to issue multiple licences or manage many requests for use, they can purchase the services of a copyright collective such as Copyright Licensing Limited or other rights management agency. For those wishing to issue blanket permission statements, Creative Commons Aotearoa New Zealand provides a range of free Creative Commons copyright licences. Creative Commons works well particularly when the copyright holder wants an item to be available publicly to everyone under the same conditions.
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Material that is likely to still be in copyright but where 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 under the law 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 was 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:
[insert example of item in collection with unknown copyright]
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.