HOME

TheInfoList



OR:

The copyright law of Australia defines the legally enforceable rights of creators of creative and artistic works under
Australian law The legal system of Australia has multiple forms. It includes a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially determined common law system. Its legal institutions and traditions are substa ...
. The scope of
copyright A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educatio ...
in Australia is defined in the ''
Copyright Act 1968 The copyright law of Australia defines the legally enforceable rights of creators of creative and artistic works under Australian law. The scope of copyright in Australia is defined in the '' Copyright Act 1968'' (as amended), which applies the ...
'' (as amended), which applies the national law throughout Australia. Designs may be covered by the ''Copyright Act'' (as sculptures or drawings) as well as by the '' Design Act''. Since 2007, performers have moral rights in recordings of their work. Until 2004, copyright in Australia was based on the "plus 50" law which restricts works until 50 years after the author's death. In 2004 this was changed to a "plus 70" law in line with the USA and
European Union The European Union (EU) is a supranational union, supranational political union, political and economic union of Member state of the European Union, member states that are located primarily in Europe, Europe. The union has a total area of ...
, but this change was not made retroactive (unlike the 1995 change in the
European Union The European Union (EU) is a supranational union, supranational political union, political and economic union of Member state of the European Union, member states that are located primarily in Europe, Europe. The union has a total area of ...
which brought some, e.g. British authors, back into copyright). The consequence is that the work of an Australian author who died before 1955 is normally in the public domain in Australia. However the copyright of authors was extended to 70 years after death for those who died in 1955 or later, so that no more Australian authors will come out of copyright until 1 January 2026 (i.e. those who died in 1955). The Australian legislation is based on the authority of section 51(xviii) of the
Australian Constitution The Constitution of Australia (or Australian Constitution) is a constitutional document that is supreme law in Australia. It establishes Australia as a federation under a constitutional monarchy and outlines the structure and powers of the A ...
.
Copyright law A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educatio ...
in Australia is
federal law Federal law is the body of law created by the federal government of a country. A federal government is formed when a group of political units, such as states or provinces join in a federation, delegating their individual sovereignty and many ...
and established by the
Australian Parliament The Parliament of Australia (officially the Federal Parliament, also called the Commonwealth Parliament) is the legislative branch of the government of Australia. It consists of three elements: the monarch (represented by the governor-g ...
. Historically, Australian copyright law followed British copyright law, but now also reflects international standards found in the
Berne Convention for the Protection of Literary and Artistic Works The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, was an international assembly held in 1886 in the Swiss city of Bern by ten European countries with the goal to agree on a set of leg ...
, other international copyright agreements and multilateral treaties, and more recently, the U.S.-Australia Free Trade Agreement. The ''Copyright Act 1968'' also covers
legal deposit Legal deposit is a legal requirement that a person or group submit copies of their publications to a repository, usually a library. The number of copies required varies from country to country. Typically, the national library is the primary reposi ...
, which requires that Australian publishers must lodge copies of their publications in the
National Library of Australia The National Library of Australia (NLA), formerly the Commonwealth National Library and Commonwealth Parliament Library, is the largest reference library in Australia, responsible under the terms of the ''National Library Act 1960'' for "maint ...
and their respective state libraries, depending on location.


History

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 A commonwealth is a traditional English term for a political community founded for the common good. Historically, it has been synonymous with "republic". The noun "commonwealth", meaning "public welfare, general good or advantage", dates from the ...
. Australian copyright law originates in British copyright law which was established by the
British parliament The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative suprem ...
through the Australian Courts Act 1828. The British
Statute of Anne The Statute of Anne, also known as the Copyright Act 1710 (cited either as 8 Ann. c. 21 or as 8 Ann. c. 19), was an act of the Parliament of Great Britain passed in 1710, which was the first statute to provide for copyright regulated by the g ...
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 Sculpture is the branch of the visual arts that operates in three dimensions. Sculpture is the three-dimensional art work which is physically presented in the dimensions of height, width and depth. It is one of the plastic arts. Durable sc ...
. Over the course of the 19th century it was extended to other works, including paintings, drawings and
photographs A photograph (also known as a photo, image, or picture) is an image created by light falling on a photosensitive surface, usually photographic film or an electronic image sensor, such as a CCD or a CMOS chip. Most photographs are now created ...
. Prior to Australia's federation in 1901, a number of
Australian Colonies The states and territories are federated administrative divisions in Australia, ruled by regional governments that constitute the second level of governance between the federal government and local governments. States are self-governing po ...
, 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 Australia, officially the Commonwealth of Australia, is a sovereign country comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands. With an area of , Australia is the largest country by ...
was established in 1901. The laws operated in concurrency with the British copyright law that was in force in the colonies. The
Australian Constitution The Constitution of Australia (or Australian Constitution) is a constitutional document that is supreme law in Australia. It establishes Australia as a federation under a constitutional monarchy and outlines the structure and powers of the A ...
gives the federal parliament power to make laws relating to
copyright A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educatio ...
and
intellectual property Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, co ...
, 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. 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 The Copyright Act 1911, also known as the Imperial Copyright Act of 1911, was an Act of the Parliament of the United Kingdom (UK) which received Royal Assent on 16 December 1911. The act established copyright law in the UK and the British Empir ...
. The British 1911 Act applied throughout the
British Empire The British Empire was composed of the dominions, colonies, protectorates, mandates, and other territories ruled or administered by the United Kingdom and its predecessor states. It began with the overseas possessions and trading posts e ...
, 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 Common law copyright is the legal doctrine that grants copyright protection based on common law of various jurisdictions, rather than through protection of statutory law. In part, it is based on the contention that copyright is a natural right ...
in unpublished works, hence completing the process that began with the 1774
House of Lords The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminst ...
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 Architecture is the art and technique of designing and building, as distinguished from the skills associated with construction. It is both the process and the product of sketching, conceiving, planning, designing, and constructing buildings ...
, sound recordings and
motion pictures A film also called a movie, motion picture, moving picture, picture, photoplay or (slang) flick is a work of visual art that simulates experiences and otherwise communicates ideas, stories, perceptions, feelings, beauty, or atmosphere ...
.


''Copyright Act 1968''

The British Copyright Act 1911 continued to apply in Australia until the Australian ''Copyright Act 1968'' came into force on 1 May 1969. The 1968 Act was enacted following the collapse of the imperial system after the passage of the British Copyright Act 1956, and following recommendations of the Spicer Committee, which had been appointed by the Australian Attorney-General in 1958 to review the 1912 Act to see what changes were necessary for Australia to ratify the Brussels Act of the
Berne Convention The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, was an international assembly held in 1886 in the Swiss city of Bern by ten European countries with the goal to agree on a set of leg ...
. the 1968 Act remains in force, but has been amended on a number of occasions. The first major review occurred in 1974 when the Whitlam Government appointed the Copyright Law Committee, chaired by Justice Franki, to examine the impact of reprographic reproduction on copyright law in Australia. The committee was also asked to examine the impact of
photocopying A photocopier (also called copier or copy machine, and formerly Xerox machine, the generic trademark) is a machine that makes copies of documents and other visual images onto paper or plastic film quickly and cheaply. Most modern photocopier ...
and "to recommend any alterations to the Australian copyright law to effect a proper balance of interest between owners of copyright and the users of copyright material in respect of reprographic reproduction." During its deliberation the Franki Committee observed that because Australia was a net importer of copyrighted works it should be careful to not adopt too radical solutions. The Franki Committee recommended, amongst others, the adoption of a statutory licensing scheme. When commencing its review the Committee stated that the primary purpose of copyright law was:
"...to give to the author of a creative work his just reward for the benefit he has bestowed on the community and also to encourage the making of further creative works. On the other hand, as copyright in the nature of a monopoly, the law should ensure, as far as possible, that the rights conferred are not abused and that study, research and education are not unduly hampered."
The ''Copyright Act 1968'' and
legal deposit Legal deposit is a legal requirement that a person or group submit copies of their publications to a repository, usually a library. The number of copies required varies from country to country. Typically, the national library is the primary reposi ...
legislation pertaining to each state mandates that publishers of any kind must deposit copies of their publications in the National Library of Australia as well as in the state or territory library in their jurisdiction. Until the 21st century, this has applied to all types of printed materials (and in some states, to
audio-visual Audiovisual (AV) is electronic media possessing both a sound and a visual component, such as slide-tape presentations, films, television programs, corporate conferencing, church services, and live theater productions. Audiovisual service pro ...
formats as well). On 17 February 2016, the federal legal deposit provisions were extended to cover electronic publications of all types. Most states and territories are reviewing or amending existing legislation to extend to digital publications as well.


Copyright Law Review Committee (CLRC)

The 1980s and 1990s saw a range of inquiries into many aspects of copyright law. A key driver for those reviews was the establishment of the Copyright Law Review Committee (CLRC) in 1983 as an advisory body for copyright reform. The CLRC was disbanded in 2005 by the Australian government after it had produced a number of reports. Notable reports include: ''The meaning of Publication in the Copyright Act'' (1984), ''Use of Copyright materials by Churches'' (1985), ''Performers' Protection'' (1987), ''Moral Rights'' (1988), ''Report of Journalists' Copyright'' (1994), ''Computer Software Protection'' (1994), ''Simplification of the Copyright Act: Part 1'' (1998), ''Simplification of the Copyright Act: Part 2'' (1999), ''Jurisdiction and Procedures of the Copyright Tribunal'' (2002), ''Copyright and Contract'' (2002) and ''Crown Copyright'' (2005). The CLRC also published reports on specific areas of copyright, including ''Highways to Change: Copyright in the New Communications Environment: report by the Copyright Convergence Group on technological advancement and the ability of legislation to cope with change'' (1994), ''Stopping the Rip-Offs: intellectual Property Protection for Aboriginal & Torres Strait Islander Peoples'' (1994), the ''Simpson Report'' 1995, long title ''Review of Australian Copyright Collecting Societies'', the ''Bently and Sherman Report'' 1995, long title ''Performers' Rights: Options for Reform'', the ''Janke Report 1999'', long title ''Our Culture, Our Future'', and the ''Ergas Report'' 2000, long title ''Report on Intellectual Property legislation under Competition Principles Agreement''.


''Copyright Amendment Act 2006''

The ''Copyright Amendment Act 2006'' made 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 restrict access to their works, and expanding the measures which count as technological restriction measures which may not be circumvented. Like the FTA language, the new anti-circumvention law is closely modelled on the US
Digital Millennium Copyright Act The Digital Millennium Copyright Act (DMCA) is a 1998 United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or ...
, although it is not identical. The Act also introduced a series of new exceptions into Australian copyright law. The best 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 computer A personal computer (PC) is a multi-purpose microcomputer whose size, capabilities, and price make it feasible for individual use. Personal computers are intended to be operated directly by an end user, rather than by a computer expert or te ...
s and portable music players). Unlike some countries in Europe, or Canada, there is no fee or licence payment 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. The Act also introduced a copyright exception allowing
parody A parody, also known as a spoof, a satire, a send-up, a take-off, a lampoon, a play on (something), or a caricature, is a creative work designed to imitate, comment on, and/or mock its subject by means of satiric or ironic imitation. Often its sub ...
and
satire Satire is a genre of the visual, literary, and performing arts, usually in the form of fiction and less frequently non-fiction, in which vices, follies, abuses, and shortcomings are held up to ridicule, often with the intent of shaming o ...
, and an exception to allow certain non-commercial use by public sector institutions like universities, schools, art galleries and archives, provided that an Australian court decides an exception would be consistent with the
Berne three-step test The Berne three-step test is a clause that is included in several international treaties on intellectual property. Signatories of those treaties agree to standardize possible limitations and exceptions to exclusive rights under their respective na ...
. The other notable change made by the Act was to expand the provisions concerning criminal copyright infringement. The Act introduced strict liability offences for some copyright infringements, and a system of "Infringement Notices" (on-the-spot fines). The stated aim of these provisions is to make copyright easier to enforce, particularly against commercial infringers. After concerns from user groups and the Senate Standing Committee on Legal and Constitutional Affairs, many strict liability offences that would have applied to non-commercial acts were removed from the final bill.


2016 amendment to include digital formats

The ''Statute Law Revision Act (No. 1) 2016'' amended the ''Copyright Act 1968'' on 17 February 2016, by which the federal legal deposit provisions were extended to cover electronic publications of all types. and most states and territories are reviewing or amending existing legislation to extend to digital publications as well. Under the legislation (section 195CD (1) (c) (i)), publishers are required to deposit digital publications without Technological Protection Measures (TPM) or Digital Rights Management (DRM); that is, the copy must contain all content and functionality, without protection measures such as password protection or subscription paywalls.


Protected subject matter, exclusive rights and infringement

Australian copyright law has been influenced significantly by the structure of English law, in addition to the
Berne Convention The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, was an international assembly held in 1886 in the Swiss city of Bern by ten European countries with the goal to agree on a set of leg ...
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).


Copyright term

Before the 2004 Amendments, Australia used a "plus 50" rule to determine when a work entered the
public domain The public domain (PD) consists of all the creative work to which no exclusive intellectual property rights apply. Those rights may have expired, been forfeited, expressly waived, or may be inapplicable. Because those rights have expired ...
. 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 Amendments changed the benchmark to "plus 70", which brought Australia into line with the United States of America, the
European Union The European Union (EU) is a supranational union, supranational political union, political and economic union of Member state of the European Union, member states that are located primarily in Europe, Europe. The union has a total area of ...
, and certain other jurisdictions, but is longer than the "plus 50" minimum required by the Berne Convention and still applicable in many other jurisdictions, including New Zealand, Papua New Guinea, Canada, and many other Commonwealth countries, as well as China, Japan, and South Korea. 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 on or after 1 January 1955, will be out of copyright 70 years after the author's death. 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. 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. For example, if a work is published 10 years after the author's death, copyright would subsist for 70 years after first publication, that is 80 years after the author's death. It should also be noted indefinite copyright does not apply to artistic works. Photographs, sound recordings, films, and anonymous/pseudonymous works are copyrighted for 70 years from their first publication. Television and sound broadcasts are copyright for only 50 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 are out of copyright 70 years after the author's death if the author is known, or 70 years after creation otherwise. The period of 70 years is counted from the end of the relevant calendar year. The
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...
Sonny Bono Copyright Term Extension Act Sonny is a common nickname and occasional given name. Often it can be a derivative of the English word "Son", a name derived from the Ancient Germanic element *sunn meaning "sun", a nickname derived from the Italian name Salvatore (especially in N ...
(1998) defines an entirely different rule based on the year of first publication in the USA. Generally, anything published before 1926 is in the
public domain The public domain (PD) consists of all the creative work to which no exclusive intellectual property rights apply. Those rights may have expired, been forfeited, expressly waived, or may be inapplicable. Because those rights have expired ...
. 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.


Fair dealing

The main exceptions to copyright infringement in Australia come under the general heading
fair dealing Fair dealing is a limitation and exception to the exclusive rights granted by copyright law to the author of a creative work. Fair dealing is found in many of the common law jurisdictions of the Commonwealth of Nations. Fair dealing is an en ...
. 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.


Fair Use proposals

While Australian copyright exceptions are based on the Fair Dealing system, Since 1998 a series of Australian government inquiries have examined, and in most cases recommended, the introduction of a "flexible and open" Fair Use system into Australian copyright law. From 1998 to 2017 there have been eight Australian government inquiries which have considered the question of whether fair use should be adopted in Australia. Six reviews have recommended Australia adopt a "Fair Use" model of copyright exceptions: two enquiries specifically into the Copyright Act (1998, 2014); and four broader reviews (both 2004, 2013, 2016). One review (2000) recommended against the introduction of fair use and another (2005) issued no final report. Two of the recommendations were specifically in response to the stricter copyright rules introduced as part of the
Australia–United States Free Trade Agreement The Australia – United States Free Trade Agreement (AUSFTA) is a preferential trade agreement between Australia and the United States modelled on the North American Free Trade Agreement (NAFTA). The AUSFTA was signed on 18 May 2004 and came i ...
(AUSFTA), while the most recent two, by the
Australian Law Reform Commission The Australian Law Reform Commission (often abbreviated to ALRC) is an Australian independent statutory body established to conduct reviews into the law of Australia. The reviews, also called inquiries or references, are referred to the ALRC by ...
(ALRC) and the
Productivity Commission The Productivity Commission is the Australian Government's principal review and advisory body on microeconomic policy, regulation and a range of other social and environmental issues. The Productivity Commission was created as an independent a ...
(PC) were with reference to strengthening Australia's "digital economy".


Other exceptions

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.


Moral rights

In 2000, moral rights were recognised in Australian copyright legislation under the ''Copyright Amendment (Moral Rights) Act 2000''. 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)


Indigenous communal moral rights

There have been various proposals in Australia for the recognition of "Indigenous communal moral rights" (ICMR), aimed at assisting
Indigenous people Indigenous peoples are culturally distinct ethnic groups whose members are directly descended from the earliest known inhabitants of a particular geographic region and, to some extent, maintain the language and culture of those original people ...
to protect the integrity and sanctity of Indigenous culture. Legislation on moral rights applies to the cultural and intellectual property rights (Indigenous intellectual property ICIP) of Indigenous peoples. After the individual moral rights legislation (''Copyright Amendment (Moral Rights) Act 2000'') was passed in the
Australian Senate The Senate is the upper house of the bicameral Parliament of Australia, the lower house being the House of Representatives. The composition and powers of the Senate are established in Chapter I of the Constitution of Australia. There are a t ...
, a commitment was given to Senator
Aden Ridgeway Aden Derek Ridgeway (born 18 September 1962) is an Australian former politician.''The Age'' (2006)Present politics Retrieved 6 July 2006. He was a member of the Australian Senate for New South Wales from 1999 to 2005, representing the Australia ...
to look at ICMR. A draft bill, the Copyright Amendment (Indigenous Communal Moral Rights) Bill 2003 ("ICMR Bill"), was circulated to a limited set of stakeholders in 2003, but was seen as ineffective and unlikely to be passed into legislation because of a number of complications. Criticisms of the bill included that it failed to provide protection where copyright had expired, as well as elements of Indigenous culture and intellectual property (ICIP) where copyright did not apply, such as
rock painting In archaeology, rock art is human-made markings placed on natural surfaces, typically vertical stone surfaces. A high proportion of surviving historic and prehistoric rock art is found in caves or partly enclosed rock shelters; this type also ...
s or unrecorded oral histories; and neither did it cover
sound recording Sound recording and reproduction is the electrical, mechanical, electronic, or digital inscription and re-creation of sound waves, such as spoken voice, singing, instrumental music, or sound effects. The two main classes of sound recording ...
s. The bill was set to be reintroduced in mid-2007, as existing legislation did not provide protection for Indigenous communal moral rights. Index and PDF
here
A 2006 paper by Terri Janke and Robynne Quiggin set out the main ICIP issues for the Indigenous arts industry, which included the deficiencies of the Copyright Act with regard to Indigenous art. These include clashes between Australian law and Aboriginal customary laws; and the lack of a "foundation of interaction between Indigenous community and user of the ICMR" in the draft bill.


Performers

From mid-2007, performers were 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, which was required by the Australia's free trade agreement with Singapore, and the Australia-United States Free Trade Agreement.


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 (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. 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. 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 The Commonwealth of Nations, simply referred to as the Commonwealth, is a political association of 56 member states, the vast majority of which are former territories of the British Empire. The chief institutions of the organisation are the Co ...
acting as a copyright policy-making body in the 1950s, which was the basis of the ''Copyright Act 1968''. 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 A license (or licence) is an official permission or permit to do, use, or own something (as well as the document of that permission or permit). A license is granted by a party (licensor) to another party (licensee) as an element of an agreeme ...
, fees and
waiver A waiver is the voluntary relinquishment or surrender of some known right or privilege. Regulatory agencies of state departments or the federal government may issue waivers to exempt companies from certain regulations. For example, a United St ...
s. 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 Creative Commons (CC) is an American non-profit organization and international network devoted to educational access and expanding the range of creative works available for others to build upon legally and to share. The organization has release ...
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.


Notable cases


''Yanggarriny Wunungmurra v. Peter Stripes Fabrics'' (1983)

In 1983, Wunungmurra was the first Aboriginal artist to have his copyright recognised in an Australian court. The case, ''Yanggarriny Wunungmurra v. Peter Stripes Fabrics'' was won against the ''Australian Copyright Act 1968'', which had previously not considered Aboriginal Australian designs to be "original" and thereby protected under copyright.


Carpets case (1994)

The "Carpets Case" was one of three Federal Court judgments in the 1990s involving the use of copyright law relating to
Indigenous cultural and intellectual property Indigenous intellectual property is a term used in national and international forums to describe intellectual property that is "collectively owned" by various Indigenous peoples, and by extension, their legal rights to protect specific such pro ...
(ICIP). In 1993, it was found that a number of designs by Aboriginal artists had been reproduced without permission on rugs made in
Vietnam Vietnam or Viet Nam ( vi, Việt Nam, ), officially the Socialist Republic of Vietnam,., group="n" is a country in Southeast Asia, at the eastern edge of mainland Southeast Asia, with an area of and population of 96 million, making ...
and marketed by the
Perth Perth is the capital and largest city of the Australian state of Western Australia. It is the fourth most populous city in Australia and Oceania, with a population of 2.1 million (80% of the state) living in Greater Perth in 2020. Perth is ...
-based company Indofurn Pty Ltd. Banduk Marika, George Milpurrurru, Tim Payungka Tjapangarti, and five other artists or their estates moved to seek reparations under the ''Copyright Act 1968'' and '' Trade Practices Act'', in a case that became known as the "carpets case". 20(1)
Alternative Law Journal The ''Alternative Law Journal'' is a quarterly peer-reviewed law journal covering law reform. It is published by SAGE Publications on behalf of the Legal Service Bulletin Co-operative ( Melbourne, Australia). The journal was established in 197 ...
36.
Officially it is referred to as '' Milpurrurru v Indofurn Pty Ltd''.. In 1994, after a trial lasting 14 days, Justice
John von Doussa John William von Doussa (born 17 September 1940) is a former Australian judge and public servant. He was a judge of the Federal Court of Australia from 1988 to 2003, president of the Human Rights and Equal Opportunity Commission from 2003 to 2 ...
in the
Federal Court of Australia The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law (with the exception of family law matters), along with some summary (less serious) and indic ...
, saying that the copyright infringements had been "plainly deliberate and calculated", awarded damages of to the artists as a group, in line with their wishes, and ordered that the rugs be released to them. This was the largest penalty awarded for copyright infringement against Australian artists up to that time, and included compensation for cultural damage stemming from the unauthorised use of sacred imagery, and in particular the "cultural hurt suffered by the artists as a result of the company’s persistent denial of their copyright". However no damages were ever paid to the artists or their next-of-kin, because the company was declared
bankrupt Bankruptcy is a legal process through which people or other entities who cannot repay debts to creditors may seek relief from some or all of their debts. In most jurisdictions, bankruptcy is imposed by a court order, often initiated by the debtor ...
and wound up. Michael Blakeney (1995) noted that the Carpets Case had represented an improvement on an earlier case, ''Yumbulul v Reserve Bank of Australia'' 1991, in which
Galpu The Dangu (Dhaŋu, Dhangu) are an Aboriginal Australian people of Arnhem Land, in the Northern Territory, one of many Yolŋu peoples. They are, according to Norman Tindale, to be carefully distinguished from the Djaŋu. Two prominent clans of ...
clan artist Terry Yumbulul's ''Morning Star Pole'' had been reproduced on the ten-dollar note,. in terms of protection of Aboriginal works and
folklore Folklore is shared by a particular group of people; it encompasses the traditions common to that culture, subculture or group. This includes oral traditions such as tales, legends, proverbs and jokes. They include material culture, rangin ...
. However, the ''Copyright Act'' "requires creators who are in a position to assert copyright ownership", which proves a problem where the designs had been created more than the specified time after the creator's death; in the case of many ancient designs, it is impossible to identify the creator. (1995) 2(1) Murdoch University Electronic Journal of Law. Erin Mackay of the Indigenous Law Centre at
UNSW The University of New South Wales (UNSW), also known as UNSW Sydney, is a public research university based in Sydney, New South Wales, Australia. It is one of the founding members of Group of Eight, a coalition of Australian research-intensive ...
(2009) wrote that the case has been noted as an important one in Indigenous case law because of the damages awarded for the cultural harm done; however, the Act does not provide "judicial recognition of the nature and obligations of Indigenous groups in establishing copyright ownership". ''Bulun Bulun v R & T Textiles'' (T-Shirts case) (1998) was the third case involving copyright law and ICIP, and was the subject of further legal analysis relating to the protecting Indigenous art, and its relationship to Indigenous communal moral rights (ICMR).


Copyright Tribunal

The Copyright Tribunal of Australia was established under the ''Copyright Act 1968'', and has specific powers relating to royalties and licensing. It is an independent body which is administered by the
Federal Court of Australia The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law (with the exception of family law matters), along with some summary (less serious) and indic ...
, consisting of three Federal Court judges who act as President and Deputy President, and other members who are appointed by the
Governor-General of Australia The governor-general of Australia is the representative of the monarch, currently King Charles III, in Australia.APRA AMCOS, consisting of the formerly separate: **Australasian Mechanical Copyright Owners Society (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 Copyright Agency Ltd (CAL) is an Australian not-for-profit public company that facilitates reuse of copyrighted material by third parties, collecting fees and delivering the payments to the creators. Its business names include Viscopy, Rightspor ...
(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. *** "Equitable remuneration" is should be fair and reasonable or just in all circumstances to both the copyright owner and the licensee. *** 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. *
Phonographic Performance Company of Australia The Phonographic Performance Company of Australia (PPCA) is a national, non-government, non-profit organisation that represents the interest of record companies and Australian recording artists. The PPCA is a partner organisation supporting So ...
(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. * Viscopy, formerly the Visual Arts Copyright Collecting Agency (VISCOPY), which licensed the copyright in artistic works, merged with
Copyright Agency Copyright Agency Ltd (CAL) is an Australian not-for-profit public company that facilitates reuse of copyrighted material by third parties, collecting fees and delivering the payments to the creators. Its business names include Viscopy, Rightspo ...
(see above) in 2017.


Timeline

* 1869First colonial copyright statute is passed in Victoria. South Australia, New South Wales and Western Australia enact similar laws in 1878, 1879 and 1895 respectively. * 1901Federation 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. * 1958In ''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. * 1959The 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 Bark painting is an Australian Aboriginal art form, involving painting on the interior of a strip of tree bark. This is a continuing form of artistic expression in Arnhem Land (especially among the Yolngu peoples) and other regions in the To ...
was used by the
Reserve Bank of Australia The Reserve Bank of Australia (RBA) is Australia's central bank and banknote issuing authority. It has had this role since 14 January 1960, when the ''Reserve Bank Act 1959'' removed the central banking functions from the Commonwealth Bank. Th ...
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, 1983various amendments * 1984 amendment, defined
computer program A computer program is a sequence or set of instructions in a programming language for a computer to Execution (computing), execute. Computer programs are one component of software, which also includes software documentation, documentation and oth ...
in the ''Copyright Act'' * 1985, 1986, 1987, 1988various amendments * 1989''Copyright Amendment Act 1989'' (repealed) ** Levy introduced on blank tapes * 1991, 1992various amendments * 1992'' Autodesk Inc v Dyason'' ("AutoCAD case"). ** The High Court supported that the reproduction of a
lookup table In computer science, a lookup table (LUT) is an array that replaces runtime computation with a simpler array indexing operation. The process is termed as "direct addressing" and LUTs differ from hash tables in a way that, to retrieve a value v w ...
in an
EPROM An EPROM (rarely EROM), or erasable programmable read-only memory, is a type of programmable read-only memory (PROM) chip that retains its data when its power supply is switched off. Computer memory that can retrieve stored data after a power s ...
in a third-party hardware lock was an infringement of a literary work. * 1993amendment * 1993'' Australian Tape Manufacturers Association Ltd v Commonwealth ("blank tapes levy case"). ** The High Court struck down the 1989 levy as, essentially, badly located and unfair tax law and not a royalty. * 1994 – The " carpets case", awarding damages to eight
Indigenous Australian Indigenous Australians or Australian First Nations are people with familial heritage from, and membership in, the ethnic groups that lived in Australia before British colonisation. They consist of two distinct groups: the Aboriginal peoples ...
artists whose designs had been used on rugs made in Vietnam by a Perth company. * 1994 (3x)various amendments * 14 August 1997''
Telstra Corporation Ltd v Australasian Performing Right Association Ltd Telstra Group Limited is an Australian telecommunications company that builds and operates telecommunications networks and markets voice, mobile, internet access, pay television and other products and services. It is a member of the S&P/ASX 2 ...
'' ("music on hold case"). ** The High Court found that music-on-hold transmitted by
Telstra Telstra Group Limited is an Australian telecommunications company that builds and operates telecommunications networks and markets voice, mobile, internet access, pay television and other products and services. It is a member of the S&P/ASX 2 ...
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'' ** Federal Court decides that mod chips for Sony
game console A video game console is an electronic device that outputs a video signal or image to display a video game that can be played with a game controller. These may be home consoles, which are generally placed in a permanent location connected to a ...
s do not contravene copyright, due to representations from the Australian Competition and Consumer Commission (ACCC) as ''
amicus curiae An ''amicus curiae'' (; ) is an individual or organization who is not a party to a legal case, but who is permitted to assist a court by offering information, expertise, or insight that has a bearing on the issues in the case. The decision o ...
''. * Federal Court decision ultimately upheld by the High Court in '' Stevens v Kabushiki Kaisha Sony Computer Entertainment''. * 2003''Copyright Amendment (Parallel Importation) Act'' ** Made some provisions for parallel importing, affecting the ' grey market'. * 2003''Designs (Consequential Amendments) Act'' * November 2003Three 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 order In English and English-derived legal systems, an Anton Piller order (frequently misspelled ''Anton Pillar order'') is a court order that provides the right to search premises and seize evidence without prior warning. This is intended to prevent t ...
s, along with the
University of NSW The University of New South Wales (UNSW), also known as UNSW Sydney, is a public research university based in Sydney, New South Wales, Australia. It is one of the founding members of Group of Eight, a coalition of Australian research-intensive ...
,
University of Queensland , mottoeng = By means of knowledge and hard work , established = , endowment = A$224.3 million , budget = A$2.1 billion , type = Public research university , chancellor = Peter Varghese , vice_chancellor = Deborah Terry , city = B ...
,
Monash University Monash University () is a public research university based in Melbourne, Victoria, Australia. Named for prominent World War I general Sir John Monash, it was founded in 1958 and is the second oldest university in the state. The university has ...
, Telstra BigPond and three Sydney Internet service providers. The investigation was backed by
Universal Universal is the adjective for universe. Universal may also refer to: Companies * NBCUniversal, a media and entertainment company ** Universal Animation Studios, an American Animation studio, and a subsidiary of NBCUniversal ** Universal TV, a t ...
, EMI, BMG, Festival Mushroom Records,
Sony , commonly stylized as SONY, is a Japanese multinational conglomerate corporation headquartered in Minato, Tokyo, Japan. As a major technology company, it operates as one of the world's largest manufacturers of consumer and professional ...
and
Warner Music Warner Music Group Corp. ( d.b.a. Warner Music Group, commonly abbreviated as WMG) is an American multinational entertainment and record label conglomerate headquartered in New York City. It is one of the " big three" recording companies and th ...
. * 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 Provider An Internet service provider (ISP) is an organization that provides services for accessing, using, or participating in the Internet. ISPs can be organized in various forms, such as commercial, community-owned, non-profit, or otherwise priva ...
s 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 2004Australia 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 2004Copyright Legislation Amendment Act passes, affecting parallel importing, temporary copies and
Internet Service Provider An Internet service provider (ISP) is an organization that provides services for accessing, using, or participating in the Internet. ISPs can be organized in various forms, such as commercial, community-owned, non-profit, or otherwise priva ...
s' liability for taking down alleged infringing material. * 1 January 2005The U.S.–Australia Free Trade Agreement (FTA) officially comes into force. * September 2005Federal Court of Australia finds Kazaa liable for copyright infringement and hands down judgment in favour of Universal Music Australia Pty Ltd. * 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 * 22 December 2017The ''Copyright Amendment (Disability and Other Measures) Act 2017'' becomes effective.


See also

*
Australian Copyright Council Australian Copyright Council (ACC) is an Australian non-profit organisation established in 1968 whose purpose is to promote understanding of copyright law in Australia. Affiliates the following organisations are affiliated with the Australi ...
* International copyright * National edeposit system


References


Sources


Factsheets from the Attorney-General's Department on the Copyright Amendment Bill 2006

Copyright Amendment Act at ComLaw
(Commonwealth of Australia Law, Attorney General's Department)
Senate Legal and Constitutional Affairs Committee on the Provisions of the Copyright Amendment Bill 2006
*


Information Sheets
Australian Copyright Council Australian Copyright Council (ACC) is an Australian non-profit organisation established in 1968 whose purpose is to promote understanding of copyright law in Australia. Affiliates the following organisations are affiliated with the Australi ...
* Australian Attorney-General'
Copyright Law Review Committee




- December 2002


Copyright laws need update for web


Further reading

* {{Authority control Australian copyright law
Australia Australia, officially the Commonwealth of Australia, is a sovereign country comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands. With an area of , Australia is the largest country by ...