Australian DVD & Video Copyright Law and Academia

by MICHAEL OVENS

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Disclaimer: The content of this post is provided for information purposes only. No claim is made as to the accuracy or authenticity of the information provided. For specific legal advice, contact a lawyer or the Australian Copyright Council at http://www.copyright.org.au/.

Ceræ: An Australasian Journal of Medieval and Early Modern Studies was founded as an open-access journal dedicated to exploring the possibilities offered by the growing field of the digital humanities. We are especially interested in exploring the flexibility of the online medium to facilitate a fusion of multimedia content with traditional academic journal articles. This post is intended as a brief guide for authors looking to understand their rights and the rights of copyright holders when it comes to using copyrighted DVDs and videos for the purposes of research, study, criticism, and review.

In writing this post, I’ve relied on the information sheets available from The Australian Copyright Council (ACC) at http://www.copyright.org.au/find-an-answer/. The ACC are an independent, non-profit organisation providing free online information sheets and legal advice pertaining to the area of Australian copyright law. The information pertaining to using copyrighted DVDs and videos for the purposes of research, study, criticism, and review are spread out across several different information sheets. To make things a little easier for the prospective author, I’ve collected and compiled this information into a single post.

Research or Study
Most academics are aware of the 10% rule that applies to printed works duplicated for the purposes of research or study. In brief, this rule states that it is fair to copy 10% of the number of pages or one chapter of a printed or electronic work for the purpose of research or study.[1] ‘Research or study’, according to one court ruling, are defined as having the same meaning as in the Macquarie dictionary. ‘Research’ therefore means

“diligent and systematic enquiry or investigation into a subject in order to discover facts or principles…”

and ‘study’ includes

“(1.) The application of the mind to the acquisition of knowledge, as by reading, investigation, or reflection; (2.) the cultivation of a particular branch of learning, science, or art:…(3.) a particular course of effort to acquire knowledge…(5.) a thorough examination and analysis of a particular subject…”[2]

This is not the case as it applies to DVDs and videos. With regards to these media, “[w]hat is important is not the amount or the proportion you want to copy, but is quality or distinctiveness.”[3] Because of this, there are no hard-and-fast rules regarding how much of a copyrighted work you can copy for the purposes of research or study. The ACC notes only that you should consider

• how much of the video or DVD you want to copy; and
• whether you can buy a copy of the video or DVD.

They provide two examples of these rules in action:

“An example of fair dealing for research or study would be a student making a compilation of excerpts from movies as part of an assignment to show examples of non-verbal communication.
It would not be a fair dealing to copy an entire film for purposes of research or study if it is commercially available.”[4]

When acquiring a DVD or video for the purposes of research or study, the safest bet is always to purchase a commercially-available copy. If a commercially-available copy is not available, consider copying only those extracts which are the bare necessities for your research or study.

Criticism or Review
The second fair dealing copyright exemption academics should be aware of is the exemption for the purposes of criticism or review. The ACC notes that the Federal Court has established that “criticism and review” involves “making a judgment of the material concerned, or the underlying ideas.”[5] In order to use copyright material, including DVDs and videos,[6] for the purpose of criticism or review, you must acknowledge the author and title of the copyright work, and the dealing must be “fair.” The ACC provides the following as an example of a fair use of copyrighted work in their ‘DVDs & Videos’ information sheet:

“For example, you may reproduce an extract from a video in a film review, provided your use is genuinely for the purpose of criticism or review. You must identify the work and its author.”[7]

I have italicised the point about ‘genuine’ use because this point is raised again in the information sheet on Fair Dealing. The same court which established the definition of “criticism and review” also emphasised that “the purpose of the criticism or review must be genuine”, noting that

“If the person has other motives – especially if these motives involve using the material to make a profit, or using a competitor’s material to divert customers from the competitor – the fact that they have also engaged in a form of criticism or review is not enough to prevent the use from infringing copyright.”

There are, unfortunately, no clearer guidelines than this which pertain to the use of extracts from a copyrighted work for the purposes of criticism or review. The ACC does offer an information sheet on Quotes and Extracts, but the information within deals only with literary works and not audio-visual material.

Learn More
If you’re interested in learning more about this subject, visit the ACC’s page at http://www.copyright.org.au/ where you can find all of their information sheets under “Find an Answer” and request free legal advice under “Legal Advice.”

[1] Australian Copyright Council. ‘Research or Study.’ Australian Copyright Council: Find an Answer. January 2012. Accessed 1/11/2013. <http://www.copyright.org.au/admin/cms-acc1/_images/16060815345265edc5bc6b7.pdf>, p.1.
[2] Australian Copyright Council, ‘Research or Study’, p.2.
[3] Australian Copyright Council. ‘DVDs & Videos: Copying & Downloading.’ Australian Copyright Council: Find an Answer. December 2012. Accessed 1/11/2013. <http://www.copyright.org.au/admin/cms-acc1/_images/1003908628523930565f8c5.pdf>, p.2.
[4] Australian Copyright Council, ‘DVDs & Videos’, p.3.
[5] Australian Copyright Council. ‘Fair Dealing.’ Australian Copyright Council: Find an Answer. February 2012. Accessed 1/11/2013.
[6] Australian Copyright Council, ‘DVDs & Videos’, pp.3-4.
[7] Australian Copyright Council, ‘DVDs & Videos’, p.3.

Michael Ovens is a PhD candidate working in the field of Medieval and Early Modern Studies at the University of Western Australia and the Reviews Editor of Ceræ.

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