What to do to publish or copy records
1. What is copyright?
Copyright is a type of property founded on a person’s creative skill and labour. It is independent of the custody or ownership of the physical item.
Copyright protects the author’s rights and interest in their original expression of ideas or information. It consists of a number of exclusive rights including the right to 'use' the copyright protected material, for example copy, publish, communicate (eg. broadcast, make available online), or publicly perform the copyright material.
Copyright law in Australia consists of the Commonwealth Copyright Act 1968 and decisions made by courts.
2. What are my responsibilities?
When using records at Public Record Office Victoria (PROV), it is your responsibility to:
• determine if the material you want to use is still in copyright
• determine if you are allowed to reproduce, publish or otherwise use the record under copyright law
• identify who owns the copyright, and
• contact the copyright owner to obtain permission to use the copyright material if permission is needed.
3. Copyright duration
Copyright has expired on a significant portion of records in the PROV collection, meaning they are now in the public domain.
For instance:
• All ‘Crown copyright’ in records that were created more than 50 years ago are out of copyright. For example, as at 1 January 2023, all records made or first published by the ‘Crown’ before 1 January 1973 are in the public domain.
• With some exceptions, all records created by anonymous or pseudonymous authors made more than 70 years ago are out of copyright. For example, as at 1 January 2023, all such records made before 1 January 1953 are in the public domain.
However, copyright in some records - in particular those which have been published by a private individual or organisation - may still exist. It is ultimately your responsibility to determine the copyright status of any material in the collection that you wish to use.
The table below outlines the duration of copyright in different types of works. This table is intended as a general guide only.
Note: Under the Copyright Act 1968 'made public' means where the work was communicated to the public, i.e. made available or seen or heard in public. This does not include records that are made available to the public simply because they become part of PROV's open access collection.
| Material - non-Crown copyright | Copyright duration |
| Literary, dramatic, artistic or musical material made public before 1 January 2019 (while author still alive) |
Life of author plus 70 years Unless the author died before 1 January 1955 (copyright in this material has expired) |
| Literary, dramatic, artistic or musical material first made public after the death of the author but before 1 January 2019 |
If made public before 1 January 1955, copyright has expired Otherwise: date first made public plus 70 years |
| Literary, dramatic, artistic or musical material not made public as of 1 January 2019 | Life of author plus 70 years |
| Literary, dramatic, artistic or musical material never made public (most of PROV collection) |
Where the material was never made public and the known author died before 1 January 1949: copyright has expired Otherwise: date created plus 70 years (e.g. in 2023, this material is 'out of copyright' if made before 1 January 1953) See below where author is unknown |
| Where the author is unknown, anonymous or pseudonymous |
If the material has been made public on or after 1 January 2019 or the material was made public within first 50 years of it being created: date first made public plus 70 years. Otherwise, if the work was created before 1 January 2019, and has never been made public: date first created plus 70 years |
| Photographs |
If created before 1 January 1955, copyright has expired If author is unknown, date first created plus 70 years Otherwise life of author plus 70 years |
|
Sound records and cinematographic films
|
If made public before 1 January 2019 or within 50 years of being created: date first made public plus 70 years Otherwise date created plus 70 years |
| Material - Crown copyright | Copyright duration |
| Material first made or published by a Commonwealth, State or Territory Government |
Date created plus 50 years, regardless of whether the work is made public or not As at 2023, materials made before 1 January 1973 are out of copyright |
The Australian Libraries and Archives Copyright Council has also published flowcharts for copyright durations which researchers may find helpful.
4. When can I reproduce copyright protected material?
You can reproduce (i.e. copy) a copyright-protected work if:
• you have permission or a licence from the copyright owner
• you are permitted under the ‘fair dealing’ provisions of the Copyright Act 1968 or
• you are permitted under the unpublished works provisions of the Copyright Act 1968.
PROV provides a copying service, which requires researchers to submit a request online here.
5. Types of copyright protected material PROV can grant permission for others to use
On behalf of the State of Victoria, PROV can give express permission and license for others to copy, publish, and otherwise use either:
• material that it has created, or
• records in the collection which are protected as Crown copyright.
Crown copyright can exist in material made, commissioned or first published by the ‘Crown’. Not all government agencies are considered part of the Crown. The following table provides general guidance on which agencies are and are not part of the 'Crown'.
| Type of entity | Part of the 'Crown'? |
| Ministers | Yes |
| State government departments and offices | Yes |
| Statutory corporations | Yes |
| Police | Yes |
| Emergency services | Yes |
| Local government | No |
| Government schools and TAFE | No |
| Universities | No |
| Hospitals | No |
| Courts | No |
| Other records created by government | Unknown |
6. Where PROV cannot grant permission for reuse
If a government agency does not form part of the Crown, then PROV cannot grant permission to publish or reuse records which have been created by or commissioned on behalf of this agency. PROV also cannot give permission for copyright material in records created by private individuals or organisations because these are also not owned by the ‘Crown’. It is the responsibility of researchers to find and obtain permissions from the current copyright owners when seeking to publish records. PROV cannot undertake to find copyright owners on your behalf.
PROV will ordinarily grant a licence to Crown Copyright records to researchers, unless special circumstances apply.
Reuse of a record encompasses:
• publishing the record, for example, in an article, book or online, and
• adapting, transforming or remixing the record.
PROV will not license material which it considers should be restricted for reasons of privacy, public safety, security and law enforcement, public health, commercialisation and compliance with the law.
7. Steps for obtaining permission from PROV to publish or reuse
These steps should be followed when you are seeking permission to publish all or part of a record held by PROV. This process must be followed for each individual record and each creator/author of the record.
Step One: Check if the material you want to publish, or reuse, is out of copyright. If this can be easily determined, there is no need to seek permission from PROV.
For example: all male and female central prison registers (VPRS 515 and 515 including mugshots) are out of copyright.
Step Two: Determine who is the creator or author of the record (i.e. name or title written, signed or printed).
Step Three: Determine if that person who created the record was employed by the government (i.e. government official or staff member) or created the material on behalf of the government. In some cases, records will simply appear to have been created by or on behalf of the government agency.
If yes: Go to Step Four.
If no: Got to Step Five.
Step Four: Submit an online Request for Permission to Publish or Reuse a Record to PROV. If PROV determines that it cannot grant permission, you must request permission to publish or otherwise reuse that record from the current responsible agency. PROV may be able to provide you with information about who is the current responsible agency.
Step Five: If the material was clearly created by a private individual or organisation, then legally PROV cannot grant permission to publish. It is your responsibility to conduct a reasonable search for the copyright owner if required, and consider your risks in publishing records, including where the copyright owner cannot be traced. More information on seeking permission from copyright owners can be found in the Australian Copyright Council's Fact Sheet - Permission: How to Get It.
8. What is fair dealing?
The fair dealing provisions of the Copyright Act 1968 permit certain types of copying and use of the copyright material without the express permission of the copyright owner. Fair dealing allows you to use the work for the purposes of:
• research or study
• criticism or review
• parody or satire
• reporting the news
• for the giving of professional advice by a legal practitioner, a patent attorney or a trade mark attorney.
Whether a person’s use of copyright material is 'fair' depends on the circumstances. Courts have tended to look at whether an objective viewer would consider that:
• the person is genuinely using the material for one of the purposes set out in the Act, and
• their use of it is fair in that context.
More information upon what constitutes a ‘fair dealing’ of a work can be found in the Australian Copyright Council publication Fair Dealing: what can I use without permission?
9. Copying material for the purposes of research or study
It is considered fair dealing to reproduce or otherwise use a reasonable portion of a material for research or study purposes.
For literary, dramatic or musical types of works which are published, a reasonable portion for these purposes is defined in the Copyright Act 1968 as:
• a single copy of a published journal article, or
• one chapter or 10% of a published book of ten or more pages, or
• 10% of the number of words of a work published in electronic form.
For other material, the Copyright Act 1968 provides factors for determining whether, in all the circumstances, your use is fair in relation to reproductions of copyright material for the purpose of research or study. These are:
• the purpose and character of the dealing
• the nature of the work
• the possibility of obtaining the work within a reasonable time at an ordinary commercial price
• the effect of the dealing on the potential market for, or value of, the work, and
• in a case where part only of the work is copied, the amount and substantiality of the part copied in relation to the whole work.
10. Copying unpublished records
PROV provides permission for copies to be made of unpublished records in its collection for Crown copyright-protected records.
Under the Copyright Act 1968, an unpublished record may also be copied and provided to you by PROV staff if a fair dealing exception applies, or if:
• it forms part of the collection and is available for public inspection, and
• its author died more than 50 years ago.
11. Quotes and extracts
Researchers should consider if permission is required for any quotes or extracts taken from public records in the PROV collection. An infringement of copyright will generally occur where a 'substantial part' of a work is used. A part may be considered 'substantial' if it is an important, essential or distinctive part. More information about quotes and extracts can be found on the Australian Copyright Council publication Quotes and Extracts.
12. Further reading
The following organisations are recommended sources of more detailed information on copyright.
The Australian Copyright Council
The Australian Copyright Council publishes a large range of information sheets and books on copyright. Other services include seminars, research, consultancy and free legal advice in some circumstances. Researchers may find the information sheet Family Histories and Copyright particularly useful.
The Australian Libraries and Archives Copyright Council
The Australian Libraries and Archives Copyright Council offers copyright education targeted at the library and archive sectors. Its online resources are also often helpful for researchers.
The Arts Law Centre of Australia
The Arts Law Centre is a national community legal centre that provides advice and information on a range of legal issues to professionals and arts organisations.
Copyright collecting societies
Copyright collecting societies are not-for-profit organisations that license or administer certain uses of copyright material on behalf of copyright owners.
Contact details for three of the major collecting societies are listed below.
Copyright Agency Limited (CAL)
The Copyright Agency Limited (CAL) administers copying licences on behalf of most of Australia’s authors and publishers and journalist members of the Media Entertainment and Arts Alliance. CAL also administers statutory licences for educational institutions and government.
Level 19, 157 Liverpool Street
Sydney NSW 2000
Tel: (02) 9394 7600 Web: www.copyright.com.au
Screenrights (the Audio-Visual Copyright Society Limited)
Screenrights may be able to help with identifying and finding copyright owners of audiovisual material.
Level 3, 156 Military Road
Neutral Bay NSW 2089
Tel: (02) 9904 0133 Web: https://www.screenrights.org/
VISCOPY
VISCOPY licenses the works of visual artists, including craft workers, photographers and designers.
Level 1, 72-80 Cooper Street
Surry Hills NSW 2010
Tel: (02) 9280 2844 Web: viscopy.net.au
For details of other copyright collecting societies, please contact the Australian Copyright Council.
Disclaimer
This information is intended as a general guide to researchers on copyright.
It is not a substitute for legal advice and should not be relied on as such. If you need to know how the law applies in a particular situation, please seek advice from a legal practitioner.