Copyright law of Australia

Australian copyright law has historically been influenced by British copyright law and International copyright agreements. In turn Australian copyright law has influenced copyright law in Britain and the Commonwealth. Australian copyright law originates in British copyright law which was established by the British parliament through the Australian Courts Act 1828.[2] The British Statute of Anne 1709, which awarded copyright protection to books, acted as a blueprint for the extension of copyright to new types of subject matter in the 18th and 19th Century. When copyright law was introduced into Australia in 1928 British copyright law had been extended beyond literary property to include engravings and sculptures. Over the course of the 19th century it was extended to other works, including paintings, drawings and photographs.[3]

Prior to Australia's federation in 1901, a number of Australian Colonies, later states, had enacted copyright laws. In part this was done to mitigate the inadequacy of the protection afforded to Australian authors by British copyright law. The state laws continued to apply after the federal Commonwealth of Australia was established in 1901. The laws operated in concurrency with the British copyright law that was in force in the colonies. The Australian Constitution gives the federal parliament power to make laws relating to copyright and intellectual property, concurrently with the states. Section 51(xviii) of the Commonwealth Constitution provides that "the Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to, inter alia, copyright, patents of inventions and designs, and trademarks". As an immediate consequence copyright law was no longer established at state level, but by the federal parliament.[3]

The first Australian copyright statute enacted at the federal level was the Copyright Act 1905, which was a departure from British copyright law. Australia became part of the British imperial copyright system on 1 July 1912 when the Australian Copyright Act 1912 adopted the British Copyright Act 1911.[3] The British 1911 Act applied throughout the British Empire, including independent countries such as Australia, Canada, New Zealand and South Africa.

The 1911 Act made important changes in copyright law and practice. The 1911 Act abolished common law copyright in unpublished works, hence completing the process that began with the 1774 House of Lords decision in Donaldson v Beckett, which held that copyright was a creature of statute. The scope of the imperial copyright system (by changes in the UK Act) was expanded to include architecture, sound recordings and motion pictures.[4]

Australian copyright law has been influenced significantly by the structure of English law, in addition to the Berne Convention and other international copyright treaties. Thus there is an exhaustive set of types of material protected, and an exhaustive set of exclusive rights.

In terms of the types of material, Australian law confers rights in works, also known as "Part III Works" (after the Part of the Act dealing with this): namely, literary works, musical works, artistic works, and dramatic works. It also confers rights in "other subject matter" (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). The rights of 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 (assuming that one of the exceptions does not apply).

Before the 2004 Amendments, Australia used a "plus 50" rule to determine when a work entered the public domain. Put simply, a "work" (i.e. a literary, dramatic, musical or artistic work) entered the public domain 50 years following the year of the creator's death, with exceptions. The 2006 Amendments changed the benchmark to "plus 70". This brought Australia into line with the United States of America, the European Union, and certain other jurisdictions; but is longer than the "plus 50" minimum required by the Berne Convention and still applied in many other jurisdictions, including New Zealand, Papua New Guinea, Canada, and many other Commonwealth countries, as well as China, Japan, and South Korea.[14] The extension to "plus 70" does not apply to crown copyright, to which the "plus 50" rule continues to apply.

Similar to the foreign reciprocity clause in the European Union copyright law, the change to the "plus 70" rule is not retroactive, so that if copyright has expired before the coming into force of the amendment it is not revived. The result is that:

• Any work that was published in the lifetime of the author who died before 1 January 1955, is out of copyright.
• Any work that was published in the lifetime of the author who died after 31 December 1954, will be out of copyright 70 years after the author's death.[15]

Additionally, section 210 of the Copyright Act 1968 prevents copyright from arising in works that were published before 1 May 1969 where those works were not themselves subject to copyright at that time.[16]

In Australia, according to section 33 of the Copyright Act 1968, any literary, dramatic, musical or artistic work that was published after the death of the author will continue to subsist under copyright 70 years after the year of first publication.[17] e.g. If a work is published 10 years after the authors death, copyright would subsist for 70 years after first publication, i.e. 80 years after author's death.[18] It should also be noted indefinite copyright does not apply to artistic works.

Photographs, sound recordings, films, and anonymous/pseudonymous works are copyright for 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 Copyright (Disabilities and Other Measures) Act, which was passed on 15 June 2017, abolished the indefinite copyright term for unpublished works. As of 1 January 2019, unpublished works out of copyright 70 years after the author's death if the author is known, or 70 years after creation otherwise.[19]

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

The United States Sonny Bono Copyright Term Extension Act (1998) defines an entirely different rule based on the year of first publication in the USA. Generally, anything published before 1923 is in the public domain. An interesting consequence of this for the Internet is that a work may be in the public domain in the US but not in Australia, or vice versa. It is important to note that except for the works falling under the "Rule of the shorter term", copyright does not depend on the country of origin, the country of publication, or the nationality of the author. A work published in the US by a British author may still be in the public domain in Australia if the author died more than 70 years ago or died before 1955, whichever is the shorter.

The main exceptions to copyright infringement in Australia come under the general heading fair dealing. Fair dealing is comparable to the United States' fair use; it is a use of a work specifically recognised as not being a copyright violation. In order to be a fair dealing under Australian law a use must fall within a 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 (added by the Copyright Amendment Act 2006)

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. 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. Australian copyright law does, however, have a number of additional specific exceptions which permit uses which may fall outside of both fair dealing and fair use. For example, a number of exceptions exist which permit specific uses of computer software.

In late 2006, Australia added several 'private copying' exceptions. It is no longer 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 (e.g., copy onto a portable media player) (s 109A), or make a copy of a literary work, magazine, or newspaper article for private use (43C).

Australia also has:

• a special division of exceptions applying to computer programs (for interoperability, security testing, normal use),
• a special division of exceptions applying to artworks in public places (to allow photography, incidental filming etc.) (see Freedom of Panorama),
• statutory (i.e. compulsory) licences that allow use by schools, universities, and others on payment of a licence fee set either by agreement or by the Copyright Tribunal (see below).

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

In 2000, moral rights were 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)

There are also proposals in Australia for the recognition of "Indigenous communal moral rights", aimed at assisting indigenous people to protect the integrity and sanctity of indigenous culture. A draft bill was circulated to a limited set of stakeholders in 2003; since then the Bill has been listed as one the government planned to pass, but has yet to be introduced.

From mid-2007, performers have also been granted moral rights in recordings of their performances, similar, but not identical, to the moral rights granted to authors.[23] These were introduced as a result of Australia's ratification of the WIPO Performances and Phonograms Treaty, which was required by the Australia's free trade agreement with Singapore, and the Australia-United States Free Trade Agreement.

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 (this is slightly different from the US works-made-for-hire doctrine: in Australia, duration of copyright is still measured by the lifetime of the employee author). In 2004–2005, Australia also introduced some complicated provisions that give performers part ownership rights in sound recordings, and directors some limited ownership rights in relation to films.[24]

In the case of a photograph commissioned for a "private or domestic purpose", the copyright will be owned by the commissioner of the work. The "private and domestic purposes" condition took effect on 30 July 1998, prior to this the copyright of all commissioned photographs was assigned to the commissioner.[25]

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.

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.

The Australian government does not infringe copyright if its actions (or those of an authorised person) are for the government. A "relevant collecting society" may sample government copies and charge the government.

The State governments follow different practices in regard to licensing, fees and waivers.

The Australian Attorney-General's Copyright Law Review Committee completed a large review of Crown Copyright in April 2005. In summary, the Committee recommended that the Crown be treated like any other employer (i.e., owner of material produced by its employees), and that for certain materials (legislation, government reports, commissions of inquiry reports) either copyright be removed, or a generous and generalised licence be granted for re-use. As of early 2007, several governments appear to be considering the use of open licences modelled along the lines of the Creative Commons model.

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

• The indefinite copyright term for unpublished works was abolished by the Copyright (Disabilities and Other Measures) Act 2017. This part of the Act comes into effect on 1 January 2019. As of that date, Crown Copyright for unpublished works expires 50 years after it was made.[19]

Material can contain multiple copyrights, that are not diminished by their combination or mingling. For example, each portion of a television broadcast is treated separately, such as the visual images, soundtrack, and any scripts.

The Copyright Tribunal was established under the Copyright Act 1968, and has certain powers relating to royalties and licensing. It receives operational support from the Federal Court of Australia.

It has been suggested that it is somewhat more sympathetic to rights-owner interests rather than user interests; for instance, by ruling to increase royalty rates under the Part VB Educational Statutory licence without a submission to this effect from either party in c.2003. This would normally be considered unusual in a common-law adversarial system.

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 notable 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 licences. The collecting societies in Australia are:

• Australasian Mechanical Copyright Owners Society Ltd (AMCOS): represents music publishers and writers from for rights in the reproduction of musical works;
• Australasian Performing Right Association (APRA): collects royalties for the owners of copyright in musical works for the performance of their musical works;
• Christian Copyright Licensing International (CCLI)
• Copyright Agency Limited (CAL): collects royalties for the reproduction of printed material, and in particular, administers the statutory licences that allow educational institutions to copy and communicate printed material;
  • Educational institutions undertook to pay "equitable remuneration" to CAL for their right to make copies of literacy, dramatic, musical and artistic works for educational purposes.[26]
    • "Equitable remuneration" is should be fair and reasonable or just in all circumstances to both the copyright owner and the licensee.[27]
    • New equitable remuneration rates were decided with a starting point from the 1985 rate of 2 cents per page copied and adjusted for the Consumer Price Index, then further increased, on the basis of changing methods of teaching, technology and volume of copying. The new rate came into operation on 1 January 1997.[28]
• Phonographic Performance Company of Australia Ltd (PPCA): collects royalties for performers for the broadcast, communication or public playing of recorded music;
• Screenrights: set up in 1990 to administer statutory licences that let educational institutions copy from TV and radio for teaching;
• Visual Arts Copyright Collecting Agency (VISCOPY): licenses the copyright in artistic works.

• 1869 – First colonial copyright statute is passed in Victoria. South Australia, New South Wales and Western Australia enact similar laws in 1878, 1879 and 1895 respectively.
• 1901 – Federation of Australia. The Federal Parliament, pursuant to section 51(xviii) of the Australian Constitution, is granted the power to make laws with respect to "Copyrights, patents of inventions and designs, and trade marks."
• 1905 – Copyright Act 1905 (Cth) is passed.
• 1912 – Copyright Act 1912 (Cth) is passed. Pursuant to section 8 of that Act, the entire Copyright Act 1911 (Imp), passed by the Parliament of the United Kingdom, is enacted into the law of Australia.
• 1958 – In Copyright Owners Reproduction Society v E.M.I. (Australia) the High Court of Australia finds that the new UK copyright statute, the Copyright Act 1956, does not apply in Australia and the 1911 Imperial Act remains law.
• 1959 – The Committee to Consider What Alterations Are Desirable in the Copyright Law of the Commonwealth (Spicer Committee) delivers its final report. It recommends that the majority of provisions appearing in the Copyright Act 1956 (UK) should be adopted). However, another eight years passes before a new Australian statute is introduced.
• 1966 – Dr David Malangi Daymirringu's mortuary rites story bark painting was used by the Reserve Bank of Australia on the one dollar note without his permission. Compensation and credit were later supplied.
• 1968 – Copyright Act 1968 (Cth) is enacted. It repealed the 1912 and the accompanying 1911 statutes.
• 1973, 1976, 1977, 1979, 1980, 1981, 1982, 1983 – various amendments
• 1984  – amendment, defined computer program in the Copyright Act
• 1985, 1986, 1987, 1988 – various amendments
• 1989 – Copyright Amendment Act 1989 (repealed)
  • Levy introduced on blank tapes
• 1991, 1992 – various amendments
• 1992 – Autodesk Inc v Dyason ("AutoCAD case").[29]
  • The High Court supported that the reproduction of a lookup table in an EPROM in a third-party hardware lock was an infringement of a literary work.
• 1993 – amendment
• 1993 – Australian Tape Manufacturers Association Ltd v Commonwealth ("blank tapes levy case").[30]
  • The High Court struck down the 1989 levy as, essentially, badly located and unfair tax law and not a royalty.
• 1994 (3x) – various amendments
• 14 August 1997 – Telstra Corporation Ltd v Australasian Performing Right Association Ltd ("music on hold case").[31]
  • The High Court found that music-on-hold transmitted by Telstra was a copyright infringement
• 1998 (3x), and 1999 (2x) – various amendments
• 2000 – Copyright Amendment (Digital Agenda) Act
• 2000 – Copyright Amendment (Moral Rights) Act
• 2001 – Law and Justice Legislation Amendment (Application of Criminal Code) Act
  • 26 July 2002 – Kabushiki Kaisha Sony Computer Entertainment v Stevens[32]
  • Federal Court decides that mod chips for Sony game consoles do not contravene copyright, due to representations from the Australian Competition and Consumer Commission (ACCC) as amicus curiae.
• Federal Court decision ultimately upheld by the High Court in Stevens v Kabushiki Kaisha Sony Computer Entertainment.[33]
• 2003 – Copyright Amendment (Parallel Importation) Act
  • Made some provisions for parallel importing, affecting the 'grey market'.
• 2003 – Designs (Consequential Amendments) Act
• November 2003 – Three Australian students received criminal convictions for copyright infringement, receiving a mix of suspended sentences, a fine, and community service.
• 7 February 2004 – KaZaA's Sharman Networks and Brilliant Digital Entertainment in Australia were raided for copyright violations using Anton Piller orders, along with the University of NSW, University of Queensland, Monash University, Telstra BigPond and three Sydney Internet service providers. The investigation was backed by Universal, EMI, BMG, Festival Mushroom Records, Sony and Warner Music.
• 8 February 2004 - Australia and the United States agree to text of bilateral free trade agreement (AUSFTA). The copyright-related parts of the Intellectual Property Chapter were:
  • Longer duration of copyright
  • Agreed standards for: copyright protection, copyright infringement, remedies and penalties
  • WIPO Internet Treaties to be implemented by "entry into force" of the FTA
  • Fast-tracking copyright owners' engagement with Internet Service Providers and subscribers to deal with allegedly infringing copyright material on the Internet
  • Tighter controls on circumventing technological restriction of copyrighted material, with a possibility of public submissions
  • Tougher on unauthorised satellite Pay-TV signal decoding
• 9 February 2004 – Australia and the United States sign the FTA.
• August 2004 – US FTA Implementation Act passes Senate, with amendments. References to documents and commentary.
• November 2004 – KaZaA case starts in Federal Court.
• December 2004 – Copyright Legislation Amendment Act passes, affecting parallel importing, temporary copies and Internet Service Providers' liability for taking down alleged infringing material.
• 1 January 2005 – The U.S.–Australia Free Trade Agreement (FTA) officially comes into force.
• September 2005 – Federal Court of Australia finds Kazaa liable for copyright infringement and hands down judgment in favour of Universal Music Australia Pty Ltd.[34]
• December 2006 – Copyright Amendment Act is passed. Effective January 2007, the Act (a) strengthens criminal infringement provisions, (b) adds new exceptions including for parody or satire, and private copying, (c) strengthens anti-circumvention law to make it more like the US Digital Millennium Copyright Act (as required by the Australia–US FTA), and (d) makes some changes to provisions affecting libraries and educational institutions.
• June 2015  – The Copyright Amendment (Online Infringement) Bill 2015 introduced into parliament to curb online piracy passed with Coalition and Labor's support 37-13[35]
• 22 December 2017 – The Copyright Amendment (Disability and Other Measures) Act 2017 becomes effective.[36]

• International copyright
• National edeposit system

• Greenleaf, Graham; Lindsay, David (2018). Public Rights: Copyright's Public Domains. Cambridge Intellectual Property and Information Law. 45. Cambridge University Press. ISBN 9781108577151.