Copyright law of Australia


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, which applies the national law throughout Australia. Designs may be covered by the Copyright Act 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 US and European Union, but this change was not made retroactive. 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 would come out of copyright until 1 January 2026.
The Australian legislation is based on the authority of section 51 of the Australian Constitution. Copyright law in Australia is federal law and established by the Australian Parliament. 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, 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, which requires that Australian publishers must lodge copies of their publications in the National Library of Australia 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. Australian copyright law originates in British copyright law which was established by the British parliament through the Australian Courts Act 1828. 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 1828 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.
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 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 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 was expanded to include architecture, sound recordings and motion pictures.

''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 John Spicer 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 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 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:
The Copyright Act 1968 and legal deposit 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. On 17 February 2016, the federal legal deposit provisions were extended to cover electronic publications of all types. Most states and territories are as of 2020 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 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, Use of Copyright materials by Churches, Performers' Protection, Moral Rights, Report of Journalists' Copyright, Computer Software Protection, Simplification of the Copyright Act: Part 1, Simplification of the Copyright Act: Part 2, Jurisdiction and Procedures of the Copyright Tribunal, Copyright and Contract and Crown Copyright. 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, Stopping the Rip-Offs: intellectual Property Protection for Aboriginal & Torres Strait Islander Peoples, 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, 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. 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 and satire, 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 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". 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.