Four step test In considering whether a large digitisation project might be suitable for a VECL, the National Library would apply a four-step test: (1) Are the works are mostly in copyright? (2) Is there a sufficiently high number of rights owners for rights clearance work to be a major impediment to the project? (3) Would the proposed be unlikely to apply; a quick way of testing ‘Fair Use’ exception this is to the rights owners have a reasonable expectation of earning income from ask ‘Would their works?’ (4) Would most of the rights owners be traceable i.e. are the works Non-Orphans? If all four answers are the National Library would consider a VECL. ‘Yes’, Examples List A. The National Library does not have firm plans to digitise most of the material listed below; these are examples of material that could be considered for large digitisation projects in future. The projects most likely to be suitable for a VECL are listed first. Applicability Applicability Applicability Number of of Proposed Type of of proposed of proposed Date range rights Orphan material Fair Use VECL holders Works provisions provisions provisions Fairness The extent A VECL factors (a) of diligent would be a and (b) may searching useful and apply not by the likely option – for profit National because of the purpose, Library very Words and would required to commercial music for facilitate cover all nature of the Composers, several research or potential content, the lyricists and study. hundred rights lack of a 1930s to Jingles Australian owners single 1960s advertising For Factor would be publisher and advertisers: jingles, (d) the prohibitive because in this – hundreds collected by jingles would and would case the APRA generally make it relevant have been unlikely that collecting produced by the Library society people would rely earning an on the may be proposed the only income from their work Orphan source of
Four step test In considering whether a large digitisation project might be suitable for a VECL, the National Library would apply a four-step test: (1) Are the works are mostly in copyright? (2) Is there a sufficiently high number of rights owners for rights clearance work to be a major impediment to the project? (3) Would the proposed ‘Fair Use’ exception be unlikely to apply; a quick way of testing this is to ask ‘Would the rights owners have a reasonable expectation of earning income from their works?’ (4) Would most of the rights owners be traceable i.e. are the works Non-Orphans? If all four answers are ‘Yes’, the National Library would consider a VECL. Examples List A. The National Library does not have firm plans to digitise most of the material listed below; these are examples of material that could be considered for large digitisation projects in future. The projects most likely to be suitable for a VECL are listed first. Type of material Date range Number of rights holders Applicability of proposed Fair Use provisions Applicability of Proposed Orphan Works provisions Applicability of proposed VECL provisions Jingles Words and music for several hundred Australian advertising jingles, collected by APRA 1930s to 1960s Composers, lyricists and advertisers: hundreds Fairness factors (a) and (b) may apply – not for profit purpose, would facilitate research or study. For Factor (d) – the jingles would generally have been produced by people earning an income from their work The extent of diligent searching by the National Library required to cover all potential rights owners would be prohibitive and would make it unlikely that the Library would rely on the proposed Orphan A VECL would be a useful and likely option because of the very commercial nature of the content, the lack of a single publisher and because in this case the relevant collecting society may be the only source of
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