Australian copyright law
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Australian copyright law is based on the Berne Convention for the Protection of Literary and Artistic Works and defines copyright in Australia. The Australian Copyright Act 1968 (as amended), is the current national copyright legislation, inclusive of additions contained in the U.S.-Australia Free Trade Agreement. It does not cover all forms of intellectual property, for example, trademarks, patents and circuit layouts are covered by separate legislative Acts. However, designs may be covered by the Copyright Act (as sculptures or drawings) as well as by the Design Act.
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Duration of copyright
Prior to the U.S.-Australia Free Trade Agreement, Australia used a "plus 50" rule for determining when a work will enter the public domain. Put simply, a work entered the public domain 50 years following the year of the creator's death, with exceptions. With the signing of the FTA in early 2005, copyright should now be understood as "plus 70", in line with the European Union and other regions.
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 1954 or earlier, is out of copyright.
- Any work that was published in the lifetime of the author who died after 1954, will be out of copyright seventy (70) years after the author's death.
Also 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.
Photographs, sound recordings, films, and anonymous/pseudonymous works are copyright for seventy (70) years from their first publication. 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.
The United States Sonny Bono Copyright Term Extension Act (1998) defines an entirely different rule based on the year of first publication in the US: generally, anything published before 1923 is public domain. An interesting consequence of this for the Internet is that a work may be public domain in the US but not in Australia, or vice versa. It is important to note that copyright does not depend on the country of origin of publication or of the author. A work published in the US by a British author may still be public domain in Australia if the author died more than seventy (70) years ago or died before 1955.
Fair dealing
Fair dealing, comparable to the United State's fair use, is a use of a work specifically recognised as not being a copyright violation. It is defined in terms of the type of work, the degree of copying, the purpose, the availability of commercial copies, and the commercial impact. Acceptable purposes vary by type of work, but the possibilities are:
- review or criticism
- research or study
- news-reporting
- lawyers' business
Fair dealing is not the same as fair use, a term which is used to allow for reasonable personal use of works, e.g. media-shifting. Australian copyright law effectively allows fair use for computer software (see List of some possibly non-violating actions in Australia below).
Moral rights
In 2000, moral rights were recognised in Australian copyright legislation. Only individuals may exercise moral rights.
List of moral rights in Australia
- 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 as 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.
Ownership of copyright
Copyright is free and automatic upon creation of the work. 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.
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.
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.
As of February 2004, the many aspects of Crown copyright were under formal review by the Australian Attorney-General's Copyright Law Review Committee (http://www.ag.gov.au/www/clrHome.nsf), which was accepting submissions.
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.
Copyright Tribunal
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.
Timeline of Australian copyright law
- 1911 - Copyright Act
- 1959 - The British Commonwealth Attorney-General directed Commonwealth nations to enact particular policies
- 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 (replaced the 1911 Act)
- 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 (1992) 173 CLR 330 F.C. 92/001
- The High Court of Australia supported that the reproduction of a lookup table in an EPROM in a third-party hardware lock was an infringment of a literary work.
- 1993 amendment
- 1993 - Australian Tape Manufacturers Association Ltd And Others v. The Commonwealth Of Australia (1993) 176 CLR 480 FC 93/004
- 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 Limited v Australasian Performing Right Association Limited, 14 August 1997, FC 97/035, S 89/1996
- The High Court of Australia 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 [2002] FCA 906 (26 July 2002)
- 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.
- 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 the text for a 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 protection of copyright 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 (http://scaleplus.law.gov.au/html/comact/12/6876/top.htm) passes Senate, with amendments. References (http://www.bakercyberlawcentre.org/fta/) 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.
List of some possible copyright-infringing actions in Australia
- Home recording of broadcast radio/television content for private use whether for time-shifting or watching more than once.
- Home copying of legitmate recordings for private use whether for media-shifting or backup.
- Performing copyright material at a fund-raising school concert
- Playing a radio receiver or recorded music loudly in a public place
- Emailing documents from a government web-site that are available for public use
- Writing out a copy of a recipe verbatim
List of some possibly non-violating actions in Australia
- Incidental filming or television broadcasting of an artistic work
- 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
- 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 (but you cannot possess it for a purpose that is detrimental to the copyright owner).
References
- Australian Copyright Act 1968 as amended (http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/)
- Chapter 17 of the Free Trade Agreement (http://www.dfat.gov.au/trade/negotiations/us_fta/guide/17.html)
- Australian Copyright Council (http://www.copyright.org.au/) Information Sheets
- Australian Attorney-General's Copyright Law Review Committee (http://www.ag.gov.au/www/clrHome.nsf)
- DFAT - AUSFTA Fact-sheet - Intellectual Property (http://www.dfat.gov.au/trade/negotiations/us_fta/outcomes/08_intellectual_property.html)
- Australian Digitial Alliance - Monthly IP Wrap-Up (http://digital.org.au/issue/ipwdec02.htm) - December 2002
- Federal Court of Australia (http://www.fedcourt.gov.au/aboutct/aboutct.html)
- National Gallery of Australia - Dr David Malangi Daymirringu (http://www.nga.gov.au/noordinaryplace/index.cfm)
- Federal Court - Kabushiki Kaisha Sony Computer Entertainment v Stevens (http://www.austlii.edu.au/au/cases/cth/federal_ct/2002/906.html) FCA 906 (26 July 2002)
- High Court - Australian Tape Manufacturers Association Ltd And Others v. The Commonwealth Of Australia (1993) 176 CLR 480 FC 93/004 (http://www.austlii.edu.au/au/cases/cth/high_ct/176clr480.html)
- High Court - Telstra Corporation Limited v Australasian Performing Right Association Limited (http://www.austlii.edu.au/au/cases/cth/high_ct/unrep338.html), 14 August 1997, FC 97/035, S 89/1996
- High Court - Autodesk Inc. v. Dyason (1992) 173 CLR 330 F.C. 92/001 (http://www.austlii.edu.au/au/cases/cth/high_ct/173clr330.html)