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Applied Information Technology 3AAIT

Privacy Legislation

Jump to anchors on this page


Definitions of personal, private and health information
National Privacy Principles (NPP)
The Privacy Act
Victorian state laws

Statistics on the 2005 review of complaints to the privacy commission - with


bonus questions!

For other legislation - see the Copyright page

How old and embarrassing matters can persevere online even after
they're supposed to have been forgiven or forgotten.

A funny but disturbing Flash movie about privacy in the future when
ordering a pizza.

SAMPLE PRIVACY STATEMENT


from a local council library, in a double-sided colour A4 leaflet

Page 1 | 2 | 3 | 4 | 5

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Because so much information is gathered, stored and communicated by


electronic means, there has been a great deal of discussion about protecting the
individual's right to privacy. Governments have created new laws to ensure
that all organisations - government and private - protect the data they collect
from individuals from deliberate and accidental disclosure. Also some laws
now restrict these organisations from using private details in ways that were
considered legitimate in past years.
There are several laws relating to the collection and use of information,
including:
• The Privacy Act 1988 (now incorporating the old Privacy Amendment
(Private Sector) Act 2000)
• The Information Privacy Act, Victoria 2000
• The Health Records Act 2001, Victoria
• The Copyright Act 1968 (now incorporating the old Copyright Amendment
(Digital Agenda) Act 2000)

What is 'personal information' about a person?


• name
• address
• age
• sex
• shopping habits
• your living arrangements, partners, children etc
• personal opinions
Note: 'personal information' does not include records held by an employer
about an employee, so employment records are exempt from legislation, even
if they hold health information.

What is ‘sensitive information’ about a person?


• racial or ethnic origin
• political opinions
• membership of a political association
• religious beliefs or affiliations
• philosophical beliefs

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• membership of a professional or trade association or trade union


• sexual preferences or practices
• criminal record.

What is 'health information' about a person?


• medical history
• current medical condition and treatments
• dental records
• genetic information
• notes and opinions of health service provider (e.g. doctor, psychiatrist)

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National Privacy Principles


1. Collection
Organisations should only collect personal information that is necessary for
one or more of its functions and activities.

2. Use and Disclosure


An organisation must not use or disclose information about an individual for
any other purpose (a secondary purpose) other than the purpose for which the
information was collected, except in a number of exceptions specified in the
Act.

3. Data Quality
An organisation must take reasonable steps to ensure that the personal
information it collects, uses or discloses is accurate, complete and up to date.

4. Data Security
An organisation must take reasonable steps to ensure that the personal
information that it collects is protected from misuse such as unauthorised
access, modification or disclosure, or loss.

5. Openness
An organisation must set out in a document a clearly expressed policy on its
management of personal information and make this document available to
anyone who asks for it.

6. Access and Correction


If an organisation holds personal information about an individual, it must
provide the individual with access to the information on request by the
individual.

7. Identifiers
Identifiers, such as a Tax File Number or Medicare number that are not
generated by an organisation cannot be adopted by an organisation as a means
of identifying an individual or company. The exception to this is the Australian
Business Number (ABN).

8. Anonymity
Where it is lawful and practicable, individuals must have the option of not
identifying themselves when entering transactions with an organisation.

9. Transborder data flow


An organisation in Australia or an external Territory may not transfer personal
information about an individual to someone (other than the organisation or the
individual) who is in a foreign country without the consent of the individual.

10. Sensitive Information


An organisation must not collect sensitive information about an individual
unless the individual has consented, or law requires the collection. The various
Australian states have their own laws regarding the use and management of
information by their own state government agencies. The provisions of these
state legislations are basically the same as the Commonwealth Privacy Act
legislation but have a different area of jurisdiction.

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The Privacy Act, 1988 (includes the


2000 Private Sector Act)
Commonwealth – affects Commonwealth government departments and now
also large private sector ("non-government") organisations.
This Act sets out 'information privacy principles' - regulations for the handling
of personal information by federal government, ACT government agencies,
and private companies. Under this Act, people have the right to see and correct
personal information held by public sector agencies.

Which organisations are subject to the Privacy Act?


• Commonwealth government departments and ACT government
agencies
• private orgs with turnover over $3m per year*, or
• any sized private organisation that holds health information, such as
medical practices, pharmacies and health clubs (note: this does not
include organisations that only store health info in employee records),
or
• any sized private organisation that buys or sells personal information
for profit, or
• any sized private organisation that is contracted to provide a service to
the Commonwealth
*Note: in 2001 98.9% of businesses turned over less than $3 million.
Key effects:
• Companies can’t pass on personal info to other people without
approval.
• People can access info about themselves and correct any errors.
• Organisations must set up policies on email use and inform employees
about them – especially if their emails are being monitored by
management
• Individuals can opt out of a database
• Complaints about organisations’ use of information can be directed to
the Privacy Commissioner.
This act aims to give people greater control over the way information about
them is handled in the private sector.

VICTORIAN STATE LAWS

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Information Privacy Act 2000 (Vic)


The Information Privacy Act 2000 establishes a regime for the responsible
collection and handling of personal information in the Victorian public service
sector (i.e. government departments). It also applies to organisations providing
services funded by government departments.
The Information Privacy Act 2000 seeks to ensure the responsible collection
and handling of personal information in the Victorian public sector.
The Act covers all personal information that identifies or could be used to
identify an individual other than health information.
The Act will come into effect from 1 September 2001 and compliance with the
legislation is required by 1 September 2002.
This legislation will cover the Victorian Public Sector and organisations
providing services funded by government departments.
The key features of the Act are that:
• The Information Privacy Principles align closely with the Principles in
the Federal Privacy Amendment (Private Sector) Act;
• The Victorian Privacy Commissioner has powers to address
complaints;
• Provision exist for Codes of Practice relating to particular organisations
or issues, to be approved by the Victorian Privacy Commissioner;
• Strong compliance provisions will exist.

Health Records Act 2001 (Vic)


The Health Records Act establishes privacy standards for the handling of all
health information and the operation of all health services.
Health services are health, mental health, disability, aged care or palliative care
services.
The Act will give individuals a conditional right of access to their own health
information, which is contained in records held in the private sector.
The Act applies to all Victorian businesses (profit and non-profit, public and
private sector) and everyone handling health information.
The Act also allows well-managed and de-identified health information
(information that cannot be linked to a particular individual) to be used for
planning and research.

SUMMARY

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Organisations must ensure that all their staff obey the laws regarding the
acquisition and use of data and information. New laws, and amendments to
existing laws, are regularly passed in parliament.

Ironically, I have a feeling this discussion is based on an article someone else


wrote. Unfortunately I can't remember who. If it's you, apologies, and thanks.

The Copyright Act 1968

(with later amendments)


Other legislation - see the Privacy Laws

In Australia, the Copyright Act 1968 (Commonwealth) recognises that any


original work is the property of the person who created it. The Act protects all
original literary, dramatic, musical and artistic works from unauthorised
reproduction. The owner of copyright in a work is the only person who has the
right to make or authorise reproductions or adaptations of the work.
In Australia, copyright protection is automatic, and applies whether or not the
work has a copyright statement or the © symbol.
The act was amended in 2000 to to cover ‘the online environment’. The Act
aims to prevent the exploitation of online material, such as copying material
from a web site and using it in a publication without permission. The Act also
allows creators of online material to enforce appropriate payments for the use
of their material.
This act deals specifically with intellectual property stored and transmitted
digitally, including software, digitised music and films etc.
Copyright owners –
• have control over how and when material is communicated or
published.
• can use technological devices to protect material (e.g. encryption, copy
protection)
• are encouraged to include a statement about their copyright restrictions
• usually must give permission before their material can be used or
transmitted
Individuals –

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• Cannot digitise a non-digital work (e.g. scan books, rip LPs to MP3)
• Cannot make or import decoding devices that bypass copyright
protection
• Cannot tamper with a copyright notice in an electronic document
• Cannot share copyrighted material on peer-to-peer networks such as
Kazaa
• Can use copyrighted material under some conditions for educational or
review purposes. For example, you can copy 10 per cent of a reference-
type book without breaching copyright.
The Internet has added a new level of complexity to copyright law. Many
people wrongly assume that because information is on the Web, it can be
freely used and reproduced. That is not the case. Just as with printed material,
information on the Web is owned by the creator of that information. Even
'freeware' software remains the intellectual property of its creator.
The fact that it is quick, cheap and easy to copy a piece of software does not
justify piracy. The claim by some sites that it is legal to keep an illegal copy of
software for up to 24 hours is a fallacy. The Software Publishers Association
and Business Software Association estimated in 1997 that piracy cost software
producers $15 billion a year worldwide. They also estimated that half of the
installed business applications were pirated.

Artistic works
A group of works protected by the Copyright Act that includes paintings, drawings, cartoons,
sculpture, graphs, craftwork, photographs, maps, and plans.

Attribution
To recognise and publicly identify a creator with her or his works, such as the writer of a
novel, the director of a film, etc.

Broadcasts
A group of “subject matter other than works” protected by the Copyright Act that includes
radio or television broadcasts, including pay television broadcasts.

Cinematograph films
See films

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Circumvention Devices and Services


Are devices and services designed to circumvent (get around) legitimate technological
protection measures put in place by copyright owners to protect their materials, such as a
copy control mechanism for a website.

Collecting Societies
Collecting societies are representative bodies for copyright owners who may administer the
statutory licence schemes under the Copyright Act 1968 and may also offer licences on
behalf of their members. They generally manage the collection of monies from copyright
users and the distribution and payment of those moneys to relevant copyright owners.

Communicate/communication
Communication means to make copyright material available online, or to transmit it
electronically to the public.

Copyright
An area of law that recognises and protects the intellectual innovation, labour and skill
involved in the creation of materials. Copyright consists of a bundle of exclusive economic
rights that the copyright owner can exercise, such as the right to publish original material for
the first time.

Copyright Agency Limited (CAL)


CAL is a non-profit organisation whose members include writers and publishers. CAL
collects copying fees from educational institutions, and pays the collected monies to the
writers and publishers whose works have been copied.

Copyright Agency Limited (CAL) Agreement


An arrangement between CAL and the schools sector that defines how the statutory licence
will operate in terms of payment, terms and determination of usage (currently sampling etc.).

Defence
A legal term used in copyright law to describe certain recognised rationales (defences) for
infringing the exclusive rights of the owner of copyright material. See fair dealing.

Digital
The representation of information through binary code electronic patterns.

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Digitisation
The expression of information in a digital form. This can mean to create material originally in
binary electronic code or to convert it from analogue into digital form.

Dramatic works
A group of works protected by the Copyright Act that includes choreographies, scripts or
scenarios for films, plays, shows, or pantomimes, and any other works intended to be
performed.

Educational institution
The definition of educational institution in the Copyright Act is broad, including the majority
of pre-schools, schools, tertiary and vocational institutions in Australia. The definition
encompasses both for profit and not for profit organizations. If you require more extensive
detail on this issue please refer to section 10 of the Copyright Act.

Electronic form
A term, which includes material in digital or electronic form, such as a CD ROM or a
computer readable format such as a PDF file. For example a literary work in electronic form
would include an e-book, an article in an online journal, or a work distributed by email.

Exclusive rights
The rights given to a copyright owner are “exclusive” rights, in the sense that they can only
be exercised with the copyright owner’s consent. In other words, the copyright owner can
prevent others from doing any of the acts protected by copyright, and permit others to use the
copyright work with his or her “licence”.

Fair dealing
Fair dealing is one of the defences to copyright infringement. The Copyright Act provides
that copying a reasonable portion of a work for the purposes of research or study will be fair
dealing. See reasonable portion.

Films
A group of “subject matter other than works” protected by the Copyright Act that includes
films, videos, documentaries, advertisements, television programs and some computer games
and multimedia products comprising moving pictures.

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Hardcopy
Hardcopy includes printed material on paper, cardboard or cellulose, such as books,
magazines, slides, postcards, pamphlets and so on. For example a literary work in hardcopy
form would include a printed book, seminary paper or poetry anthology. An artistic work in
hardcopy from would include a photograph on photographic paper, a picture drawn on paper
or a graph included in a printed book.

Library/libraries
“Library” is not defined in the Copyright Act however the Australian Copyright Council has
adopted the Collins Dictionary definition of:
“1. a room or set of rooms where books and other literary materials are kept.
2. a collection of literary materials, films, tapes, gramophone records, etc, kept for reference
or borrowing.”

Literary works
A group of works protected by the Copyright Act that includes:
• written materials such as journal articles, novels, poems, song lyrics and reports; and

• computer programs (or compilations of computer programs) and compilations such as directories and
databases.

Musical works
A group of works protected by the Copyright Act that includes musical scores, sheet music,
and compositions. Song lyrics are protected as literary works.

Not separately published


Copyright material is not separately published if it is not published by itself as an individual
item. For example a poem included in an anthology but not published by itself will not be
separately published.

Published editions
A group of “subject matter other than works” protected by the Copyright Act which is
provides protection for the typographical layout of particular publications of works.

Public domain
Material in which the copyright has expired is often referred to as in the public domain.
Generally, copyright material enters the public domain when the period of copyright

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protection has expired. For most published copyright works, this occurs 50 years after the
year of the author’s death. For other materials (for example photographs, films and sound
recordings), copyright expires 50 years after the year of first publication.

Reasonable portion
The statutory licence provides for the copying and communicating of a “reasonable portion”
of a literary, dramatic or musical work in hardcopy form, or a literary or dramatic work in
electronic form. The meaning of “reasonable portion” of a published literary or dramatic
work in electronic form is generally taken as 10 per cent of the words in the work, or up to
one chapter of the work, if the work is divided into chapters. For a published literary,
dramatic or musical work in hardcopy form is generally taken as 10 per cent of the pages in
the work, or up to one chapter of the work, if the work is divided into chapters.

Reasonable time
Reasonable time is not defined in the Copyright Act. In the past in agreements between
educational institutions and CAL the adopted view has been that it means six months in
respect of course materials, which are text books intended to be issued to or otherwise
obtained by any student, and 30 days in respect of other works. To check availability simply
contact your usual book supplier. In relation to textbooks if your institution is unable to
purchase the work within that reasonable timeframe, contact CAL.

Reproduction
The act or process of duplicating or copying copyright works which can be done through a
variety of technologies including photocopying, scanning, electronic file duplication, etc.
Reproduction includes reproduction into, or from a digital format, including the first
digitisation of a work

Sound recordings
A group of “subject matter other than works” protected by the Copyright Act that includes
audio recordings stored on vinyl records, compact discs, audiotapes and similar media.

Statutory licence
The Copyright Act contains a number of statutory licences. One example is the statutory
licence in Part VB of the Copyright Act (sometimes known as the CAL Licence) that allows
educational institutions to reproduce and communicate works for educational purposes.
Limits apply to the extent of copying and communicating under the licence.

Subject matter other than works


A category of material protected by copyright that includes television and radio broadcasts,
sound recordings, films, and published editions. Copyright in this subject matter generally

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protects the interests of investors in copyright industries such as the recording, film,
broadcasting (sound and TV) and publishing industries.

Works
A category of material protected by copyright that includes literary, dramatic, musical and
artistic works. Copyright in “works” protects the interests of individual creators such as
authors, lyricists, poets, composers, artists and photographers.

Copyright law sets rules to support and reward the development of materials by creators and
their associated industries. It covers materials produced in the areas of art, literature, music,
films, broadcasts and computer programs.
Copyright law looks after the interests of creators by:
• protecting the original expression of their ideas; and

• safeguarding their original works from copying and certain other uses.

Copyright law also looks after the interests of society by balancing a healthy market place for
creative and intellectual work with access to and use of information more generally to
advance our collective knowledge and endeavour.
In Australia copyright protection is free and happens automatically when you create
something in material (physical) form, including material stored electronically.
If you are studying copyright law is supportive of you having reasonable access to
information to benefit your course of study. What follows is a summary of this support.

Access to copyright materials


Fair dealing
When you photocopy from books, journals, newspapers and magazines, most students rely on
the defence of fair dealing, under the Copyright Act. This defence basically sets out that in
the situation when people want to use copyright material for “research or study”, provided
this is fair to the copyright owner, it is acceptable under the law. In this context fair means
that your use doesn”t compromise the economic interests of the owner.
The fair dealing provisions of the Copyright Act now include you making a reproduction of
an article (or multiple articles dealing with the same subject matter) in a periodical
publication, or a reasonable portion of a literary, dramatic or musical work, in electronic
form, for the purposes of research of study.
The meaning of “reasonable portion” of a published literary or dramatic work in electronic
form is generally taken as 10 per cent of the words in the work, or a chapter of the work, if it

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is organized in such a fashion. For hardcopy literary, dramatic and musical works, you can
copy 10 per cent of the pages or up to one chapter.
Sometimes copying more than 10% still comes under the umbrella of fair dealing for the
purpose of research and study. To know whether it does, you would have to look at the
criteria in the Copyright Act set out in section 40 (2), or it might be easier to ask someone,
such as librarian or a teacher.
As a guide a useful gauge is if you need to copy more than 10%, one chapter, or one article
(unless on the same subject matter) for your study, you probably need to ask permission to
copy more, or buy your own copy of the publication.
Usually you can include copyright material in essays you write or other material you need to
hand in for your course (for example, any extracts from poetry or novels, quotes from critics
or interviews, film or music grabs). Of course it is important that you attribute the person who
created the material that you use, and this is now a legal requirement under moral rights.

Insubstantial Copying
You can also use “insubstantial parts” of copyright material for assignments, without risk of
infringing copyright in both electronic and hardcopy material.
Of course working out what is an “insubstantial part” is not always easy. It is best to think of
this concept not simply as a measure of quantity, but more importantly as a question of
quality. Generally unless the part you use is quite small and relatively “unoriginal” you
shouldn”t rely on “insubstantiality” as the basis for using copyright material.

Libraries and education institutions


There are also special provisions in the Copyright Act that allows the staff of libraries and
educational institutions to copy and communicate material on your behalf.

You as a copyright creator


As a student you own any material you create as part of your schoolwork—not your school.
This means that if your school wants to use your materials in any publications or on web sites
they need to get your permission. Obviously you can choose to use and publish your own
material in any publications or web sites you make.

Copyright changes: What does it mean for you?


Introduction | Changes in copyright law and licences

Introduction
As a student you use lots of different information and resources as part of your study but also
as part of your own life. Many of you use modern technologies such as computers, mobile
phones, VCRs to “do things”, such as work, study, play, stay in touch and be entertained.
As you do school work and assignments you use, and sometimes create copyright materials.
Some of you will already know about copyright law. For others it might be a new area, and if
it is, then have a look at Copyright basics.

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In the last two years copyright law has gone through big changes to keep up with the ways
that people today are using information, and also with new technology that can store and
deliver information in different ways.
You need to understand these changes in the law because they affect your study and also your
future in Australia’s knowledge society.
The Copyright Aware website updates you on several issues:
• new moral rights for creators;

• copyright law in the digital realm; and

• higher charges to schools for copying and making available copyright materials to you as students.

Changes in copyright law and licences


Moral rights
Creators play a unique role in bringing new works into the world. Moral rights are the legal
recognition of that special relationship. Moral rights say that a creator has the right to be
identified as the originator of their work.
As moral rights concern the personal connection between creators and their creative works
they cannot be bought or sold.
Under the Copyright Act creators are now entitled to:
• to be named and identified as the creator of the work, (the right of attribution);

• to not have their work attributed to someone else (false attribution); and

• to stop others making changes to their work or treating their work in any way which might harm their
honour or reputation (the right of integrity).

In general moral rights apply to all literary, dramatic, musical and artistic works and films,
which are protected by copyright.
How might you infringe moral rights in your schoolwork? Here are the most likely ways:
• By not identifying the creator in any work that you reproduce, exhibit or transmit.

• By falsely attributing the work to someone other than the creator.

• By treating a work in a derogatory way, that is doing something that damages the creator’s reputation
such as distorting, mutilating or altering the work.

Of course it is not an infringement of moral rights when the creator has consented to actions
that would otherwise be considered an infringement.

Digital material and copyright law


There have been big changes in copyright law recently to make sure that it covers the Internet
and new ways that people like you are using and passing on information.
These change were made through the passing of The Copyright Amendment (Digital Agenda)
Act 2000. For you the big news is that electronic resources and online materials are now
definitely covered by copyright law.
Some changes in the new legislation are more directly relevant to your studies and are
summarised below. The legislation:

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• Introduces a new “technology-neutral” right of communication, which covers copyright owners


communicating material to people electronically. The law now recognises their right to use any
technology, say for instance sending material by e-mail, or making material available online.

• Clarifies that first digitisation, the right to convert copyright material into electronic form, sits with the
copyright owner. If you use technology to change hard copy material into electronic form, when it has
never been in this form, you could be breaking the law. There are steep fines for doing this. If in doubt
check with your librarian.

• Extends the fair dealing provision, in the Copyright Act to digital content. This means that as a student
you can access, within set rules, works in electronic form for your own research and study purposes.

• Bars tampering with electronic rights management information.

• Bars the supply of devices or services that circumvent technological protection measures and broadcast
decoders devices which copyright owners use to protect digital product.

Hardcopy material
Students and libraries don't have to pay to copy under the library or research or study
provisions, but educational institutions do pay copying fees. These fees are paid to copyright
owners, through copyright collecting societies such as Copyright Agency Limited and
Screenrights
A new charging structure for schools using hardcopy copyright materials, under the statutory
provision of the Copyright Act was set early in 2002. Basically the new charging regime
means that schools pay:
• a new rate based on a per page rate for copying (it used to be based on a set amount per student); and

• different charging rates based on the type of material being copied and the durability of the copy.

Most schools do not pay this licence fee directly from their own budgets, instead it is paid by
central schools authorities. The ongoing increases in both digital and hardcopy reproduction
means schools and students need to get copyright smart. This update is to make you aware
that nothing you receive is “free”; it’s just that you might not have to pay for it directly.
This big increase is also significant for schools because a rate for digital copying has not yet
been set.

Moral rights
Up until recently the Copyright Act in Australia did not look after the personal rights of
creators. The Copyright Amendment (Moral Rights) Act 2000 which came into effect on 21
December 2000, redresses this situation. This new legislation recognises the personal
connection of creators to their work and the significance of both attribution and creative
integrity to their labours.
The moral rights package now entitles individual creators:
• to be identified as the creator of the work (the right of attribution);

• to not have their work attributed to someone else (false attribution);

• to object to any derogatory treatment of their creations, which might harm their honour or reputation (the
right of integrity).

Schools need to understand that the interpretation of derogatory treatment varies according to
the nature of the work. However it can include how a work is contextualised or something
done to a work itself.

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In general moral rights apply to all literary, dramatic, musical and artistic works, which are
protected by copyright. Moral rights also apply to films. Moral rights cannot be waived or
assigned like economic rights. They last for the duration of copyright in the work, usually the
lifespan of the creator, plus an additional fifty years.
There is a proviso in the Copyright Act for a work not to be attributed or for it to be altered
where such actions are “reasonable” but this is complex and schools should not rely on it to
avoid attributing creators without advice from their departments or organizations. Of course
there is also no infringement of moral rights when the creator has consented to actions that
would otherwise constitute an infringement. However, consent must be in writing, and must
state the acts for which the consent is given.

Infringement of moral rights


Moral Rights can be infringed by:
• not identifying the creator in any work that you reproduce, exhibit or communicate;

• not identifying a creator in the way they stipulated or in a “reasonable” form in which their identification is
clear and prominent;

• attributing the work falsely to someone other than the creator;

• dealing with a work if you knew or should have known that it is falsely attributed or is derogatory in its
treatment e.g. by reproduction, importation or dealing commercially; or

• treating a work in a derogatory way, i.e. doing something that is prejudicial to the creator's reputation
such as distorting, mutilating or altering the work.

Acts which require you to attribute authorship are different depending on the type of work,
but could include reproduction, publication, performance, broadcast and adaptation of the
work. This also includes exhibition of artistic works, transmission by email and making
available online.

Issues for schools


Schools need to develop a culture of attribution and respect for copyright materials to contain
their legal exposure and to meet their wider social obligations. This can be achieved through:
• adopting a clear attribution standard which is consistently applied to any reproduction or use of
copyrighted materials;

• respecting the integrity of copyright material by resisting alteration of copyright material in any way that
is prejudicial to the interests of the creator; and

• requesting consent from moral rights holders for any proposed use of, or re-contextualisation of a
creator’s works that could be perceived by them as being harmful to their reputation.

Schools need to be aware that the person to approach for moral rights clearance could be
different to the owner of copyright in the materials. Moral rights authorisation needs to come
from the person who created the work.
Staff can reinforce a culture of attribution and respect for copyright materials by:
• adhering to best academic practice in attributing authorship in any copyright material they reproduce
and communicate to students or use in classroom practice; and

• requiring students to attribute authorship in any schoolwork or projects that they undertake or submit.

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http://www.copyrightaware.gov.au/index.html

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