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).
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" (ie a literary, dramatic, musical or artistic work) entered the public domain 50 years following the year of the creator's death, with exceptions. With the signing of the FTA in early 2005, copyright should now be understood as "plus 70", in line with the European Union and other regions. The extension to "plus 70" was not applied to Crown-owned copyrights.
Similar to the foreign reciprocity clause in the European Union copyright law, the "plus 70" rule is not retroactive. In short, this can be interpreted as:
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. Unpublished works hold copyright indefinitely.
Photographs, sound recordings, films, and anonymous/pseudonymous works are copyright for seventy (70) years from their first publication. Television and sound broadcasts are copyright for only fifty years after the year of their first broadcast (though the material contained in the broadcast may be separately copyrighted). Most other works are also dated from the first publication/broadcast/performance where this occurred after the author's death.
The period of seventy (70) years is counted from the end of the relevant calendar year.
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.
The main exceptions to copyright infringement in Australia come under the general hearing fair dealing. Fair dealing is comparable to the United States' fair use, is a use of a work specifically recognised as not being a copyright violation. However, unlike fair use, in order to be a fair dealing under Australian law a use must fall within one of range of specific purposes. These purposes vary by type of work, but the possibilities are:
In order for a certain use to be a fair dealing, it must fall within one of these purposes and must also be 'fair'. What is fair will depend on all the circumstances, including the nature of the work, the nature of the use and the effect of the use on any commercial market for the work.
Fair dealing is not the same as fair use, a term which is generally used in relation to the US's open ended exception, which allows any use (regardless of purpose) as long as it is 'fair'. This has, for example, been interpreted by US courts to allow for reasonable personal use of works, e.g. media-shifting, which would not necessarily be permitted under Australia's fair dealing laws. 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 (see List of some possibly non-violating actions in Australia below).
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 (eg, copy onto an iPod) (s 109A), or make a copy of a literary work, magazine, or newspaper article for private use (43C).
Australia also has:
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:
Automatic resale rights (royalty payments to the author on subsequent resales of the original and reproductions) are not covered by Australian legislation. To the disappointment of artists' groups, the Australian government quietly announced its intention not to pursue resale rights (droit de suite) in 2006.
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. 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.
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 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 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 (ie, 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 license be granted for re-use. As of early 2007, several governments appear to be considering the use of open licenses 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:
|Published literary, dramatic or musical works (includes published official records)||50 years after the end of the year in which the work is first published|
|Unpublished literary, dramatic, musical works||Copyright subsists indefinitely|
|Artistic works||50 years from the end of the year when made|
|Photographs taken before 1 May 1969||50 years from the end of the year when made|
|Photographs taken after 1 May 1969||50 years from end of year of first publication|
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 licenses. The collecting societies in Australia are:
The Act also introduced a series of new exceptions into Australian copyright law. The most well known are the private copying exceptions, which follow on from proposals by former Attorney-General Philip Ruddock to allow people to record most television or radio program at home to watch at a later time with family or friends, and to 'format-shift' their music (make copies from CDs onto personal computers and portable music players such as iPods). Unlike some countries in Europe, or Canada, there is no fee or license paid on players to compensate copyright owners for these private copies, although the exceptions are narrowly defined, and do not allow, for example, making copies for friends or family. 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' (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 a Senate Committee, many strict liability offences that would have applied to non-commercial acts were removed from the final bill.
A discussion of the Act and its changes by the Senate Standing Committee on Legal and Constitutional Affairs is available here