Artists, filmmakers & educational copyright royalties online – Entitlements and Claiming.

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By Sally McCausland

If an artwork, blog or podcast is downloaded off the public internet and used in a school, university or TAFE, the copyright owner may be entitled to a royalty. Read on to understand when you might be entitled to claim.

What are the educational statutory schemes?

When a school or other educational institution downloads artistic works (eg., photographs, drawings, paintings), text, podcasts or vodcasts in class, royalties may be payable to the copyright owners of that material. The Australian educational copying schemes administered by Screenrights and Copyright Agency Limited (herein after Copyright Agency) now extend to digital downloads of such material. As cultural institutions and funding bodies increasingly reach out to audiences online, online royalties are growing. These royalties are becoming increasingly important to creators as visual arts, text publications and audiovisual material are made available on public websites.

What kind of material do they cover?

Screenrights administers the educational compulsory licence for broadcasts.[1] Educational institutions in the scheme (currently most Australian educational institutions and many in New Zealand) may copy broadcasts off air or download a broadcast (eg., a vodcast or podcast) from the broadcasters website for use in class. The Screenrights licence also permits programs copied off air to be digitised and made available to schools by not for profit resource centres in a flexible range of ways including digital file transfer or secure intranet connection (eg., Clickview Exchange).

Screenrights also covers government copying and retransmission of broadcasts, which will not be discussed here. The Screenrights licence only applies online to broadcaster websites. It does not cover streaming, only downloading of programs which have been broadcast. It therefore doesn't cover services such as Youtube or videos which have never been broadcast.

Copyright Agency administers the educational compulsory licence for print and online textual material. This material can be legally used in class without a direct licence from the copyright owner, but once again is subject to the payment of a standardised fee to the copyright owner if it is detected in sampling. The Copyright Agency scheme originally applied to print material which was photocopied for use in class, however now it covers any text or artistic downloads from the internet (other than material behind a pay wall). This means that a wide range of creative material such as blogs, website pages, online PDFs and information sheets, photographs and artworks on gallery or museum websites, and online newspaper articles can attract royalties if used in class. Many artists and writers are now potentially able to receive royalties for material downloaded by schools off their own website, or from websites to which they have licensed their copyright material.

The Screenrights and Copyright Agency schemes only apply online to the free public internet, when educational institutions download materials for use in class. If the material is behind a paywall (eg. iTunes or an ebook subscription site) it cannot be used in class under the statutory schemes, but must be directly licensed by the institution.

What if I want to directly licence my work to educational institutions?

You can. The educational statutory licences are "non-exclusive" in that they do not prevent similar direct licensing activities by the owner. For example, a program may have an appointed "non-theatrical" (eg., educational licensing) distributor and a book may have a publisher who sells to schools. The educational statutory schemes are alternative and additional sources of royalty income.

Check the website terms and conditions

Website terms and conditions play an important role in determining whether collecting societies – in particular Copyright Agency – will remunerate online materials.

Statutory royalties can be waived (that is – they will not be paid) if the website states an intention that materials used by educational institutions is to be "free" (eg. royalty-free).  For example, all Creative Commons licensing waives educational statutory royalties.

For this reason, it's important to check the terms and conditions of any website which will host your copyright material to see what the position is in relation to educational use.

Websites which waive educational statutory royalties

Some educationally targeted components of program websites waive educational statutory royalties. For example, the National Film and Sound Archive's Digital Learning websites are subject to the following legal notice:[2]

"Permitted educational use

In addition to any other uses permitted in relation to material on the Digital Learning websites (whether owned by the NFSAor not), you may download, display, print and reproduce the material in unaltered form only (retaining all associated acknowledgments) for non-commercial educational purposes". (emphasis added)

This means that an educational institution which wants to download and use the website in class can do so without further permission or fee. No royalties will be payable by the educational institution (or rather the educational body which pays such royalties on behalf of the institutions in its sector) if this material shows up in a Copyright Agency sample.

There are a number of policy reasons why website terms and conditions may waive educational royalties. This may be because the institution's remit includes the provision of free educational access, or because a direct licence fee has been paid by Education Services Australia (an educational licensing body) or other funding body to the copyright owner. All Australian Commonwealth Agencies are now under a directive to release material on their websites under a Creative Commons BY licence. This licence waives educational statutory royalties. While this is the default position, an agency can determine that material valued for its artistic or cultural content – such as government funded film and television – is not to be waived when made available on its website[3], so it is important to check the terms and conditions of the particular part of the site where your work is to appear.[4]

Example of website which does not waive Copyright Agency royalties

While many government and cultural institutions are moving towards waiving Copyright Agency royalties for educational parts of their websites, other website operators are now aware of the potential money which can flow back from educational use of website materials. For example Atom, an online study guide provider for film and television programs, previously waived Copyright Agency royalties from downloads of study guides in class. However it has recently changed its policy and has notified Copyright Agency that it wishes to receive these royalties. Atom will now share any Copyright Agency royalties for study guide downloads with the filmmaker.[5]

What if I want to receive Copyright Agency royalties when my work is downloaded for use in class?

You should check with the operator of the website to whom you licence your copyright material to see what their policy is in relation to claiming online statutory royalties for educational use. If the site waives royalties, you may want to consider whether the licence fee, if any, you are being paid to create or licence your copyright materials is adequate, particularly if you are being asked to create materials which are targeted for educational use.

If the site does not waive educational royalties, you should ensure you discuss with them what will happen to any royalties which are reported. Will they be paid to you or shared with others? What about supplementary materials (for example a study guide about your work) which you didn't fund or create? See below for tips in contract negotiations.

Copyright Agency has now published an information sheet with drafting guidelines for website terms and conditions indicating wording which indicates the intention to receive Copyright Agency royalties, or alternatively to waive them.[6]

Who gets educational statutory royalties?

Not every work, or use of a work in class, will be covered under the educational schemes (see above) and not every use will be picked up in the sampling systems which are used. However, in some cases a work which is topical or important to education can generate substantial educational statutory royalties for the copyright owner. It is therefore important to factor this possibility into contract negotiationsfor the creation, licensing and distribution of the work.

Educational statutory royalties are generally paid to the copyright owner of a work unless otherwise specified. If you are the copyright owner of an artwork for example, and you are licensing the artwork to a gallery website, then (assuming the website terms and conditions did not waive royalties – see above) you should be entitled to receive any educational statutory copying royalties for use of the work in class.

If you created the work while an employee, your employer will generally be entitled to any educational statutory royalties, not you. However, in some sectors such as journalism, this position is different. Check your contractual arrangements or seek advice from Arts Law if you are unsure.

The contract may change your entitlements

The contract or licence you enter with your employer or institution or arts funding body, or the website operator may change the default position in relation to your entitlement to educational statutory royalties for use of your creative works.

Check your contract to see who owns copyright and whether educational royalties are dealt with. Educational statutory royalties can also be referred to by other terms, such as "statutory royalties"; "collecting society royalties";  "reprographic royalties"; "off air royalties"; "electronic royalties", "subsidiary income" etc. Drafting tips for capturing these royalties in contracts can be found on the Screenrights and Copyright Agency websites.

Even if it is not possible to capture these royalty entitlements for yourself, it is useful in negotiations to be aware of whether other parties may potentially be making money from your creative works.

How to be paid

Assuming you are the copyright owner and/or are entitled to educational statutory royalties, you do not have to register in advance. The society holding any royalties identified as yours in their samples of educational use are obliged to try and locate you. However, you can make it easier to be found by registering (which is free and can be done online).

It is usually better to register your interest directly, as only the registered party will be entitled to receive direct reporting from the society. If there is a joint royalty entitlement (for example a joint work of copyright such as a film or where an author and publisher will share these royalties) it may be better for all claimants to register their exact entitlement directly with the society, so that they can be paid directly. At a minimum, ensure that you have a right in your contract to receive copies of the registration of the work and of the society's royalty statements if any.  

 

Useful websites

Screenrights

www.screenrights.org

Copyright Agency (Copyright Agency Limited)

www.copyright.com.au

Educational copying advice for teachers

www.smartcopying.edu.au

Atom study guides

http://www.metromagazine.com.au/studyguides/study.asp

 

Sally McCausland is a Senior Lawyer at SBS and a director of Screenrights. This article represents her personal views.