First digitisation

As already mentioned the Copyright Act has been updated to recognize that copyright owners have the “exclusive” right to convert copyright material into electronic form. This is called “first digitisation”.

Under law if anyone breaches the rights of a copyright owner by converting copyright material into electronic form there are harsh penalties. Schools need to be aware that the penalties for electronic breaches are indeed harsher than they are for reproducing copyright material in non-digital form. The rationale for this is that the fast, easy distribution of electronic materials can potentially cause greater harm to the copyright owner’s commercial interests. The maximum penalties that can apply for these breaches are $93,500 to companies and $60,500 individuals.

Generally otherwise first digitisation is treated much the same as making a hardcopy or analogue reproduction, or a reproduction from a work that originated in electronic form.

Under Statutory Licence; a school may reproduce a reasonable portion of a work (or more in certain circumstances), including a copy that involves the first digitisation of a copyright material. Reasonable portion generally means:

• 10 per cent or one chapter of a work that is separately published, or the whole work if it is not separately published or not readily available (10% of pages for print works and 10% of words for electronic works); and
• one article from a periodical, or more if the articles are on the same subject

Further under the licence as it relates to communication of works in electronic form, a school may communicate an electronic reproduction of a work by:

• emailing the reproduction to students; or
• making it available on a secure website.

Under statutory licence schools are allowed to “first digitise” an insubstantial part of a work.

The library and fair dealing exceptions also apply to allow the first digitisation of copyright material.