Australian Copyright Law

Sociologyindex, Sociology Books 2011

Australian copyright law is based British model, the Berne Convention for the Protection of Literary and Artistic Works, other multilateral treaties, and the U.S.-Australia Free Trade Agreement.

The Australian Copyright Act 1968 does not cover all forms of intellectual property. Trademarks, patents and circuit layouts are covered by separate legislation, though designs may be covered by the Copyright Act (as sculptures or drawings) as well as by the Design Act.

Australian law confers rights in works, also known as "Part III Works" : namely, literary works, musical works, artistic works, and dramatic works.

Australian law confers rights in "other subject matter", also known as "Part IV Subject Matter", which cover the kinds of material protected in some countries by 'neighbouring rights': sound recordings, films, broadcasts, and published editions.

To be protected, material must fall into one of these exclusive categories. The rights in Part IV subject matters are more limited, because infringement requires exact copying of the actual subject matter (sound-alikes or remakes are not covered).

In terms of the exclusive rights, different kinds of subject matter have different rights.

Owners of copyright in works have rights to reproduce, publish (meaning publish for the first time), perform, and adapt the work, and communicate it to the public (including broadcast, or communicate by making available online). Owners of copyright in artistic works are more limited (there is no right to control public display of artistic works).

Owners of copyright in other subject matter have the exclusive right to make copies, to communicate them to the public, and to cause them to be heard/seen in public.

Infringement occurs where a person does an act falling within the copyright owner's exclusive rights, without the authorisation of the copyright owner.

Duration of copyright

Prior to t, Australia used a "plus 50" rule for determining when a work will enter the public domain. Put simply, a "work" (ie a literary, dramatic, musical or artistic work) entered the public domain 50 years following the year of the creator's death, with exceptions.

With the signing of the U.S.-Australia Free Trade Agreement in 2005, copyright should be understood as "plus 70", in line with the European Union and other regions. The extension to "plus 70" was not applied to Crown-owned copyrights.

Similar to the foreign reciprocity clause in the European Union copyright law, the "plus 70" rule is not retroactive. In short, this can be interpreted as:

Any work that was published in the lifetime of the author who died in 1956 or earlier, is out of copyright.

Any work that was published in the lifetime of the author who died after 1956, will be out of copyright seventy (70) years after the author's death.

Any work that was published after the death of the author, will be out of copyright seventy (70) years after the year of first publication. Unpublished works hold copyright indefinitely.

Photographs, sound recordings, films, and anonymous/pseudonymous works are copyright for seventy (70) years from their first publication. Television and sound broadcasts are copyright for only fifty years after the year of their first broadcast (though the material contained in the broadcast may be separately copyrighted). Most other works are also dated from the first
publication/broadcast/performance where this occurred after the author's death.

The period of seventy (70) years is counted from the end of the relevant calendar year.

Fair dealing and other exceptions

Fair dealing is comparable to the United States' fair use. In order to be a fair dealing under Australian law a use must fall within one of range of specific purposes. These purposes vary by type of work, but the possibilities are: review or criticism, research or study, news-reporting, judicial proceedings or professional legal advice, parody or satire

In order for a certain use to be a fair dealing, it must fall within one of these purposes and must also be 'fair'. What is fair will depend on all the circumstances, including the nature of the work, the nature of the use and the effect of the use on any commercial market for the work.

Fair dealing is not the same as fair use, a term which is generally used in relation to the US's open ended exception, which allows any use (regardless of purpose) as long as it is 'fair'. This has, for example, been interpreted by US courts to allow for reasonable personal use of works, e.g. media-shifting, which would not necessarily be permitted under Australia's fair dealing laws.

It is not an infringement of copyright to record a broadcast to watch or listen at a more convenient time (s 111), or to make a copy of a sound recording for private and domestic use (eg, copy onto an iPod) (s 109A), or make a copy of a literary work, magazine, or newspaper article for private use (43C).

Australia also has:

exceptions applying to computer programs (for interoperability, security testing, normal use);

exceptions applying to artworks in public places (to allow photography, incidental filming etc);

statutory or compulsory licenses that allow use by schools, universities, and others on payment of a license fee set either by agreement or by the Copyright Tribunal.

Australian copyright law recognises temporary copies stored in computer memory as 'reproductions' falling within the copyright owner's exclusive rights. Hence there are various exceptions for temporary copies made in the ordinary course of use or communication of digital copies of works.

Moral rights are recognised in Australian copyright legislation. Only individuals may exercise moral rights. The moral rights provided under Australian law now are:

A right of attribution

the right to be clearly and reasonably prominently identified as the author, in any reasonable form

the right to avoid false attribution, where the work is falsely presented as being another's work

Integrity of authorship

the right to not have the work treated in a derogatory manner (this is a right to protect the honour and reputation of the author)

Automatic resale rights (royalty payments to the author on subsequent resales of the original and reproductions) are not covered by Australian legislation.

Performers are also granted moral rights in recordings of their performances, similar, but not identical, to the moral rights granted to authors. These were introduced as a result of Australia's ratification of the WIPO Performances and Phonograms Treaty.

Ownership of copyright

Copyright is free and automatic upon creation of the work. In general, the first owner of copyright will be the author (for literary, musical, dramatic and artistic works) or producer (for sound recordings and films) or broadcaster (for broadcasts).
Under Australian law, where an employee is the author, the first owner of copyright is the employer and duration of copyright is still measured by the lifetime of the employee author.

Australia has also introduced some provisions that give performers part ownership rights in sound recordings, and directors some limited ownership rights in relation to films.

A copyright notice (©) is not required on a work to gain copyright, but only the copyright owner is entitled to place a notice. It is useful in publishing the date of first publication and the owner. Where a copyright notice is used, the onus in infringement proceedings is on the defendant to show that copyright does not subsist or is not owned by the person stated in the notice.

Government-owned copyright

The Australian Commonwealth and State governments routinely own copyright in Australia. While this could be seen as being due to the concept of the Crown being traditionally paramount rather than the people, it is more influenced by the then British Commonwealth acting as a copyright policy-making body in the 1950s, which was the basis of the 1968 Copyright Act.

Copyrights owned by the Crown in Australia have different durations to publicly held copyrights, as below:

Published literary, dramatic or musical works (includes published official records) 50 years after the end of the year in which the work is first published

Unpublished literary, dramatic, musical works.  Copyright subsists indefinitely

Artistic works 50 years from the end of the year when made Photographs taken before 1 May 1969 50 years from the end of the year when made

Photographs taken after 1 May 1969 50 years from end of year of first publication

Composite copyright
Material can contain multiple copyrights, that are not diminished by their combination or mingling. For example a television broadcast is copyright, as is the visual footage and soundtrack, as well as the screenplay, music and lyrics.

Collecting Societies

A number of copyright collecting societies operate in Australia. Collecting societies are established to collect royalties for uses of copyright material on behalf of authors and copyright owners: they assist to overcome the significant transaction costs that would face individual creators in monitoring, enforcing, and licensing their rights.

A feature of some of the Australian collecting societies is that some are 'declared' to be the society with the function of being the sole collector of royalties under the statutory licenses.

Some possibly non-violating actions in Australia

Incidental filming or television broadcasting of an artistic work or making a film, drawing, photograph, etc of a sculpture or other artistic work in a public place

Performing copyright material by teachers or students for the purpose of the students' education or performing material, receiving a broadcast, or using a recording for residents and their guests in the premises where they live or sleep.

Copying non-copy-protected legitimate software for any of these purposes:

Backup, Security-testing, Inter-operability, Correcting errors

Buying an infringing copy of a video for private use

format-shifting some media, such as putting a CD onto iTunes and then onto an iPod (this does not apply to films)

making a backup CD copy of a CD even without a format shift

recording a television broadcast, then destroying this copy after watching it at a more convenient time. (time-shifting)

In 2006, the Copyright Amendment Act 2006 - was passed by the Commonwealth Parliament. The legislation completed changes required by the US-Australia Free Trade Agreement - in particular, it strengthened anti-circumvention laws, for the first time making it illegal in Australia to circumvent technical measures used by copyright owners to protect access to their works, and expanding the measures which count as technological protection measures which may not be circumvented. Like the FTA language, the new anti-circumvention law is closely modelled on the US DMCA, although it is not identical.

The Act also introduced a series of new exceptions into Australian copyright law. The most well known are the private copying exceptions, which follow on from proposals by former Attorney-General Philip Ruddock to allow people to record most television or radio program at home to watch at a later time with family or friends, and to 'format-shift' their music (make
copies from CDs onto personal computers and portable music players such as iPods).

Unlike some countries in Europe, or Canada, there is no fee or license paid on players to compensate copyright owners for these private copies, although the exceptions are narrowly defined, and do not allow, for example, making copies for friends or family.  

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