Section 12 of the Copyright and Neighbouring Rights Act 2000 allows libraries and archives to do two things without permission.
Who may rely on section 12
Notwithstanding section 6(1)(a), a public institution whose activities do not serve direct or indirect commercial gain may, without authorisation, make a single copy of the work by reprographic reproduction in the two cases set out below.
“Public institution” is defined in section 2 to include a public library or an archive. “Includes” leaves room for other public bodies — a public museum, a national records office — but a private company library is not within it.
“Whose activities do not serve direct or indirect commercial gain” excludes an institution operating commercially, and the word indirect reaches a library run as a service supporting a commercial business.
“A single copy ... by reprographic reproduction” — one copy, made reprographically. Reprography is facsimile copying: photocopying and equivalent processes. The section does not on its face authorise digitisation for general distribution, and it does not authorise communication to the public under section 6(1)(j).
Paragraph (a) — a copy to satisfy a request
Where the work reproduced is a published article, other short work or short extract of a work, and the purpose is to satisfy the request of a person — provided that:
(i) the institution is satisfied that the copy shall be used solely for the purposes of study, scholarship or private research; and
(ii) the act of reproduction is an isolated case occurring, where repeated, on separate and unrelated occasions; and
(iii) there is no licence or other authority available under which approval for such copies can be made.
Sub-paragraph (i) puts an active duty on the institution. It is not enough that the reader says the copy is for research; the institution must be satisfied that it is. In practice that means a signed declaration of purpose at the point of request.
Sub-paragraph (ii) is the anti-systematic rule, in the same words as section 11(1)(b)(i). Repeated copying is permitted only on separate and unrelated occasions. A library that copies the same article for every student on a course is not making isolated copies.
Sub-paragraph (iii) is the residual condition: if a licence or other authority is available, the exception does not apply. Section 12 fills a gap; it does not displace licensing.
Note the subject matter limit: a published article, other short work or short extract. Copying a whole book for a reader is outside paragraph (a) whatever the purpose.
Paragraph (b) — preservation and replacement
Where the copy is made in order to preserve and, where necessary, replace a copy, or to replace a copy which has been lost, destroyed or rendered unusable in the permanent collection of another public institution — provided that:
it is impossible to obtain such a copy under reasonable conditions; and
the act of reprographic reproduction is an isolated case occurring, where repeated, on separate and unrelated occasions.
Paragraph (b) covers copying for the institution’s own preservation, and copying to replace a lost, destroyed or unusable copy in another public institution’s permanent collection — institutions helping each other rebuild collections.
The controlling condition is that it is impossible to obtain such a copy under reasonable conditions. Where the work is still in print, or a replacement can be bought, the exception does not apply. It is aimed at out-of-print, rare and fragile material — which in Papua New Guinea includes a great deal of historical, linguistic and cultural documentation held nowhere else.
Note that paragraph (b) is not limited to articles, short works or extracts. A whole work may be copied for preservation, because the whole work is what is at risk.
The two permissions compared
| (a) — for a reader | (b) — preservation and replacement | |
|---|---|---|
| What may be copied | A published article, other short work or short extract | Any work in the permanent collection |
| Purpose | Study, scholarship or private research of the requester | Preserving or replacing a copy |
| Gate | The institution must be satisfied of the purpose | It must be impossible to obtain a copy under reasonable conditions |
| Isolated act rule | Yes | Yes |
| No licence available | Yes — sub-para (iii) | Not stated separately — but the “impossible to obtain” test does similar work |
| Number of copies | One, by reprographic reproduction | |
Public lending is a separate question
Section 12 permits copying. It says nothing about lending, which is governed by section 6(1)(e).
Public lending is defined in section 2 as the transfer of possession of the original or a copy for a limited period, for non-profit making purposes, by a public institution in the normal course of providing such services to the public. The owner’s exclusive right to authorise it applies to five categories only: audiovisual works, works embodied in sound recordings, computer programs, databases, and musical works in the form of notation — and it applies irrespective of the ownership of the copy lent.
The consequence for a library: lending books requires no authorisation, because books are not in the section 6(1)(e) list and the distribution right in section 6(1)(d) is exhausted once an authorised distribution of the copy has occurred. Lending films, CDs, software and databases engages section 6(1)(e) and needs permission.
Section 10 — quotation of a short part of a published work. Section 11 — teaching. Section 5(b) — official texts of a legislative, administrative or legal nature are outside copyright entirely, so legislation and judgments may be copied freely and in full.
And under section 25(d), where a work may be used without the author’s authorisation under Part II, the rights of performers, producers and broadcasters do not apply either.
Sources
- Copyright and Neighbouring Rights Act 2000 — ss 2, 5, 6, 10–12, 25
Before relying on anything here, read the current text of the Copyright and Neighbouring Rights Act 2000 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.