Four step test In considering whether a large digitisation project might be suitable for a VECL, the National Library would apply a four-step test: (1) Are the works are mostly in copyright? (2) Is there a sufficiently high number of rights owners for rights clearance work to be a major impediment to the project? (3) Would the proposed ‘Fair Use’ exception be unlikely to apply; a quick way of testing this is to ask ‘Would the rights owners have a reasonable expectation of earning income from their works?’ (4) Would most of the rights owners be traceable i.e. are the works Non-Orphans? If all four answers are ‘Yes’, the National Library would consider a VECL. Examples List A. The National Library does not have firm plans to digitise most of the material listed below; these are examples of material that could be considered for large digitisation projects in future. The projects most likely to be suitable for a VECL are listed first. Type of material Date range Number of rights holders Applicability of proposed Fair Use provisions Applicability of Proposed Orphan Works provisions Applicability of proposed VECL provisions Jingles Words and music for several hundred Australian advertising jingles, collected by APRA 1930s to 1960s Composers, lyricists and advertisers: hundreds Fairness factors (a) and (b) may apply – not for profit purpose, would facilitate research or study. For Factor (d) – the jingles would generally have been produced by people earning an income from their work The extent of diligent searching by the National Library required to cover all potential rights owners would be prohibitive and would make it unlikely that the Library would rely on the proposed Orphan A VECL would be a useful and likely option because of the very commercial nature of the content, the lack of a single publisher and because in this case the relevant collecting society may be the only source of
and with a strong interest in licencing any further uses; on that criterion, Fair Use would not apply. Works provisions contact details for many of the rights holders. Records of JC (Firm) Mainly playscripts, opera libretti, music scores some of which are annotated, also publicity material, financial papers, contracts, scrapbooks, photographs. 86 shelf metres of material 1874-1976 Estimated to be in the thousands and financial papers: should meet Fairness Factors (a) purpose of public good, facilitates research and study (b) material’s nature is and unpublished (c) not applicable and (d) no potential market. In-copyright playscripts, scores and libretti – there is a potential market for this content, would thus not fall under Fair Use. In-copyright playscripts, scores and libretti – most works have identified creators, who are probably traceable VECL might be useful for in-copyright playscripts, music scores and libretti. Material relating to the 1967 A project by National and State Libraries Australia – Mainly 1960s poster artists, publishers, people and as writers Fairness factors (a) and (b) may apply – not for profit purpose, would The extent of diligent searching required to cover all potential rights The complexity of rights clearance in a multi-library project suggests that
size of the digitisation project still being scoped of leaflets – probably hundreds. facilitate research or study, high public interest in the 50th anniversary in 2017. Fairness factor (c) not applicable. Fairness factor (d) – can assume that most of the creators were motivated more by public policy issues than by an expectation of income from commercial use of their work and would welcome the digitisation project owners would be prohibitive and would make it unlikely that the Library would rely on the proposed Orphan Works provisions this may be suitable for VECL. The number of works to be digitised – not yet determined – will be a major consideration. Zines Works, mainly on paper, generally very short print runs, sold or swapped at Zine Fairs, subject matter includes social issues such as racism, Mainly 1990s to date Over 1000 Fairness Factor (b) The nature of the content suggests that some zine creators would welcome the broader audience available through a National Library Approx 37% are anonymous or plus an unknown % of the named rights holders would probably be untraceable with a diligent search. Diligent The Library might use a risk management approach or VECL. Risk management could involve contacting a sample of Zine creators to assess their views. If the sample generally agreed the use was fair, the
bullying, womens’ roles. NLA holds over 1500 titles. digitisation project. (d): though the works were produced for a market, the market size was small, prices were low and availability was searching would be high effort. It is unlikely that the Library would rely on the proposed Orphan Works provisions. Library might proceed, and use methods such as publicity to the Zine community, and/or a on request policy to further manage risk. If the sample showed that some zine creators had continuing expectation of earning income from their work , the library may seek a VECL. Postcards in the Library’s Pictures Collection Postcards 1955 to 2005 and graphic artists – estimated in the thousands. Postcard publishers - number not known at this stage. Fairness factors (a) and (b) may apply – not for profit purpose, would facilitate research or study. For Factor (d) – the & graphic artists would generally have been produced by people earning an income from their work and with an The extent of diligent searching required to cover and graphic artists would be prohibitive and would make it unlikely that the Library would rely on the proposed Orphan Works provisions The Library would initially consider a risk management approach by seeking the agreement of the postcards’ publishers. The number of publishers and the diversity of agreements between them and photographers etc may, however, be found to be high. In that case, a VECL may be useful.
interest in licencing any further uses; on that criterion, Fair Use is unlikely to apply. Major Australian Newspapers 1955 to 1980s Publishers: several i.e. a manageable number. Journalists, advertisers, writers of letters to the editor and other estimated tens of thousands. Fairness factors (a) and (b) may apply – not for profit purpose, would facilitate research or study. Digital copies could have a potential market; on that criterion, Fair Use is unlikely to apply The extent of diligent searching required to cover all journalists, advertisers etc would be prohibitive and would make it unlikely that the Library would rely on the proposed Orphan Works provisions The Library would be more likely to use a risk management approach than VECL. A key factor would be the agreement of the publisher. Other risk management strategies could include staged release of the digitised material and/or a on request policy. David Daw Collection Approx 10,000 35 mm photographic and around 2000 photographic prints, collected by David Daw, on aviation topics 1950s to date thousands Fairness factors (a) and (b) may apply – not for profit purpose, would facilitate research or study. Fairness factor (d): the photographs are largely the work of amateur and aviation enthusiasts The extent of diligent searching required to cover all potential rights owners be prohibitive and would make it unlikely that the Library would rely on the proposed Orphan Works provisions The Library would rely on Fair Use rather than a VECL for this collection. contributors s
who provided the photographs at no charge to the collector. Their expectation of income from these works is probably negligible. Examples List B. The National Library has commenced work on these digitisation projects, generally to a feasibility and costing stage Type of material Date range Volume of rights holders Applicability of proposed Fair Use provisions of Proposed Orphan Works provisions of proposed VECL provisions published in Australia; five titles identified Newspapers 1951 to issues Five publishers. Estimate for journalists: dozens. Estimate for advertisers and other - hundreds Fairness Factors (a) and (b) may apply – the project is supported by the National Library of the Netherlands and would presumably be supported by the community i.e. the and the potential users would have some the project would facilitate research and study. Fairness factor (c): not applicable. Fairness Factor Publishers – contactable. Journalists and others – diligent search effort would be high; the Library would probably not rely on the Orphan Works provisions Not applicable in the National Library’s view. The Library would proceed based on risk (in which permission from the publishers would be a key factor), and support from the Fair Use provisions.
(d): uncertain – there could be a market for digitised copies of back issues of these newspapers, but the market may not be large enough to attract interest from a commercial digitiser Australian Economic History Review Academic and business journal 1956 to 1996 (after which digitised issues are available One publisher. estimated, from sampling, 1040 Fairness Factor (b) may apply – the project would facilitate research and study. Fairness factor (c): not applicable. Fairness Factor (d): Digital copies could have a potential market; on that criterion, Fair Use is unlikely to apply Publisher – contactable. Journalists and others – diligent search effort would be high; the Library would probably not rely on the Orphan Works provisions Not applicable in the National Library’s view. The Library would proceed based on risk (in which permission from the publishers would be a key factor), and support from the Fair Use provisions.
Overseas Trading Magazine published by Australian government under various agency names 1947 to 1986 One publisher during this period – a government agency estimated over 1000, but most appear to have been writing as government employees and thus would have relinquished their copyright to their employer Fairness factors (a) and (b) would probably apply. Initial purpose of the magazine was non-profit. Government publications can be assumed to have a public good purpose. Digitisation would facilitate research or study. Fairness factor (c): not applicable. Fairness Factor (d): Intention of publisher and creators appears to have been Publisher – contactable. Unlikely to need to contact Not applicable - The Library would proceed based on risk (in which permission from the publisher would be a key factor), and support from the Fair Use provisions Proposal 11-4: The National Library welcomes the proposal (11-4) for a new exception to permit libraries and archives to make preservation copies without a limit on the format and number of such copies. This will allow the National Library to meet the preservation aspects of its obligation under the National Library Act 1960 to maintain a national collection of library material. The National Library has a suggestion on wording if the Proposal 11-4 is enacted. The proposal states that the ‘... exception should not limit the format’. The Library interprets this to mean that there should be no limit on any subsequent re-formatting or migration that may be necessary for a preservation purpose, as well as no limit on the format of the first preservation copy made of a work. The Library suggests that the preservation exception in its final, enacted, form should retain this broad wording, to ensure that it supports any reformatting (for instance from PDF format to a format which may replace PDF in the future) that is required to ensure that preservation copies remain fit for purpose. .