Copyright expiration in Australia
Encyclopedia
Copyright expiration in Australia is generally either 50 or 70 years after a work was created. The law has evolved over the years, and photographs are treated differently to other published work. Generally, anonymous works pre 1955 are no longer copyright
. If the author is known it is 50 years after the author's death if pre 1955 or 70 years if post 1955.
Copyright for works other than photographs are based on when the creator dies, while photographs are public domain if taken before 1955.
Any Australian photo, published or unpublished, anonymous or attributed, taken before 1 January 1955 is out of copyright and in the public domain. The government information sheet numbered G011 is quite specific and unambiguous in regard to copyright law on photographs taken prior to 1 January 1955:
"If photographs were taken prior to 1 January 1955, copyright has now expired."
"The duration of copyright in photographs has changed significantly as a result of Australia implementing its obligations under the Australia-US Free Trade Agreement (AUSFTA). New rules have been introduced to determine the duration of photographs that were still protected by copyright on 1 January 2005 or that were taken after that date. These rules came into effect on 1 January 2005:
"For photographs which were still in copyright on 1 January 2005, or which were created on or after that date, copyright now lasts until 70 years from the end of the year the photographer died.
"If the photographer is unknown or used a pseudonym, duration continues indefinitely until the photograph is published. Once it is published, duration will then last until 70 years from the end of the year in which it was published.
All photographs taken before 1 January 1955 are now out of copyright and do not benefit from the new rules."
Picture Catalogue http://www.nla.gov.au/catalogue/pictures/ says that permission must be asked to copy photos from their site. However in the case of images taken before 1955, it is seen as possibly a request which has no legal basis because the images are public domain
. Once something is in the public domain, the copyright belongs to everyone
. An argument
given by the British Library
online http://www.imagesonline.bl.uk/britishlibrary/ is that "The original work(s) are in the public domain, the copies the Library supplies are in copyright as they are new copies of the original materials which are what copyright is held. This is why you will need to clear permission."
The State Library of Victoria
, which does not hold copyright for some of its works says that "It must be stressed that obtaining permission to reproduce an item is not the same as copyright. The State Library of Victoria often does not hold the copyright for items in its collections" http://www.slv.vic.gov.au/about/using/copying/permission/index.html
Under the old pre-FTA system, all Australian photos taken before 1 January 1969 were out of copyright 50 years from when taken. After 1 January 1969, it was 50 years from the end of the year it was first published. Thus, when the FTA came into effect on 1 January 2005, only photos taken before 1 January 1955 were out of copyright under the old system. Now, for a photo taken on or after 1 January 1955, copyright for non-Crown Copyright photos is "life of creator plus 70". So all photos taken in 1955 are not going to become public domain at the end of 2005.
The copyright in the words for a newspaper article (or in a drawing
) is owned by the writer (or illustrator
, etc.). If the writer died before 1 January 1955, then the work is out of copyright; alternatively if the author is unknown (and cannot be discovered by reasonable enquiry), and if first published before 1 January 1955, then the work is out of copyright. The copyright in the layout
expires 25 years after the end of the year in which it was first published. For artistic works other than photographs and engravings (so including drawings, paintings, sculpture) it was "life plus 50" and is now "life plus 70". If the creator is unknown, it was "first published plus 50" and is now "first published plus 70". So if the creator died before 1 January 1955 or is unknown and the work was first published before 1 January 1955, then the work is out of copyright. This "in general" applies even if the creator was an employee of the newspaper which holds the actual copyright. See the tables of the duration of copyright. http://www.copyright.org.au/pdf/acc/InfoSheets/G023.pdf
For artistic works other than photographs and engraving
s (so including drawings, paintings, sculpture
) it was "life plus 50" and is now "life plus 70". If the creator is unknown, it was "first published plus 50" and is now "first published plus 70". So if the creator died before 1 January 1955 or is unknown and the work was first published before 1 January 1955, then the work is out of copyright. This "in general" applies even if the creator was an employee of the newspaper which holds the actual copyright.
Public
institutions would like to maintain that it is their reproduction of a Public Domain work which has a copyright attached, since they cannot claim that the author/artist's copyright exists. The UK government site is not clear about the status of faithful reproductions, mentioning that it may be possible to re-use a reproduction without permission, but also that the institution/photographer may claim copyright by virtue of the "skill
and labour
" which has gone into making the reproduction. However, the 1999 Bridgeman Art Library v. Corel Corporation ruling (in U.S. jurisdiction) runs counter to this view, and the institutions' stance has possibly not been tested in higher European or Australian courts. It is contestable whether these institutions would be able to demonstrate economic loss resulting from the republishing of one of their (low-resolution) reproductions in a non-profit/educational context on the web
(e.g., on Wikipedia
), since they themselves have freely and similarly published these very same images. A further argument against the practices of these institutions can be read here http://englishhistory.net/tudor/art.html.
One view is that the National Library
has probably not created a new work through the process of scanning the images and placing them online. So the images are still under public domain. A library may place you under contractual restrictions to use of a high quality reproduction.
For non-government photographs: if taken before 1 May 1969, copyright expires 50 years from the end of the year they were taken; on or after 1 May 1969, 50 years from the end of the year of first publication. Thus the interpretation that images made before 1955 are out of copyright. However, it would appear that this does not apply to government works. For works made by the government in or before 1969, copyright expires after 50 years; for those made after 1969 it expires 50 years from the date the work was first published. Copyright exists in perpetuity for photographs taken after 1 May 1969.
American Fair Use entitles the use of copyrighted material in articles directly about the copyrighted material, for such uses as parody or critique. A question has arisen as to what the status of copyright law is for material which is loaded onto an American site, from Australia, whether it falls under Australian or American copyright law. It has been regarded that images in the public domain in Australia are not necessarily so in the U.S. An image being in the public domain in Australia may not necessarily imply that it is in the public domain in the U.S.
The DMCA contains the following text which seems to imply that the US does not protect copyright once it has lapsed in its home country:
Restoration of Copyright Protection
Both treaties require parties to protect preexisting works from other member
countries that have not fallen into the public domain in the country of origin through
the expiry of the term of protection. A similar obligation is contained in both the
Berne Convention and the TRIPS Agreement.
However, Copyright is a national right, not an international one. The only reason why America recognises Australian copyright is because they have signed a treaty known as TRIPS, which is compulsory for countries who want to be members of the WTO.
which had photographic reproductions of works of art which were already in public domain available on the internet, which were used by the Corel
corporation on a CD-ROM
. It was held that exact photographic copies of two-dimensional works in the public domain cannot be copyrighted—even if making the image takes considerable effort—because the resulting works lack originality. However, this case in American law does not necessarily reflect views on copyrightability outside of the U.S.
33 Duration of copyright in original works
(1) This section has effect subject to subsection 32(2) and to section 34.
(2) Subject to this section, copyright that subsists in a literary, dramatic, musical or artistic work by virtue of this Part continues to subsist until the end of 70 years after the end of the calendar year in which the author of the work died.
(3) If, before the death of the author of a literary work (other than a computer program) or a dramatic or musical work:
(a) the work had not been published; (b) the work had not been performed in public; (c) the work had not been broadcast; and (d) records of the work had not been offered or exposed for sale to the public; the copyright in the work continues to subsist until the end of 70 years after the end of the calendar year in which the work is first published, performed in public, or broadcast, or records of the work are first offered or exposed for sale to the public, whichever is the earliest of those events to happen.
(4) A reference in the last preceding subsection to the doing of an act in relation to a work shall be read as including a reference to the doing of that act in relation to an adaptation of the work.
(5) If, before the death of the author of an engraving, the engraving had not been published, the copyright in the engraving continues to subsist until the end of 70 years after the end of the calendar year in which the engraving is first published.
34 Duration of copyright in anonymous and pseudonymous works
(1) Subject to subsection (2), if the first publication of a literary, dramatic, musical or artistic work is anonymous or pseudonymous, any copyright subsisting in the work by virtue of this Part continues to subsist until the end of the period of 70 years after the end of the calendar year in which the work was first published.
(2) Subsection (1) does not apply in relation to a work if, at any time before the end of the period referred to in that subsection, the identity of the author of the work is generally known or can be ascertained by reasonable inquiry.
(a) where the work is unpublished—continues to subsist so long as the work remains unpublished; and
(b) where the work is published—subsists, or, if copyright in the work subsisted immediately before its first publication, continues to subsist, until the expiration of 50 years after the expiration of the calendar year in which the work was first published.
(2) Subject to the next succeeding subsection, copyright in an artistic work of which the Commonwealth or a State is the owner, or would, but for an agreement to which the last preceding section applies, be the owner, continues to subsist until the expiration of 50 years after the expiration of the calendar year in which the work was made.
(3) Copyright in an engraving or photograph of which the Commonwealth or a State is the owner, or would, but for an agreement to which the last preceding section applies, be the owner, continues to subsist until the expiration of 50 years after the expiration of the calendar year in which the engraving or photograph is first published.
(US FREE TRADE AGREEMENT IMPLEMENTATION ACT 2004 SCHEDULE 9)
120 Subsection 33(2)
Omit "50 years", substitute "70 years".
121 Subsections 33(3) and (5)
Omit "the expiration of 50 years after the expiration", substitute "the end of 70 years after the end".
122 Subsection 34(1)
Omit "50 years", substitute "70 years".
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
. If the author is known it is 50 years after the author's death if pre 1955 or 70 years if post 1955.
Copyright for works other than photographs are based on when the creator dies, while photographs are public domain if taken before 1955.
Public domain photos before 1955
- Photographs taken before 1955 are now in the public domain
- Photographs taken since 1955 will not be in the public domain for at least 20 years unless under crown copyright which expires 50 years after first publication.
Any Australian photo, published or unpublished, anonymous or attributed, taken before 1 January 1955 is out of copyright and in the public domain. The government information sheet numbered G011 is quite specific and unambiguous in regard to copyright law on photographs taken prior to 1 January 1955:
"If photographs were taken prior to 1 January 1955, copyright has now expired."
"The duration of copyright in photographs has changed significantly as a result of Australia implementing its obligations under the Australia-US Free Trade Agreement (AUSFTA). New rules have been introduced to determine the duration of photographs that were still protected by copyright on 1 January 2005 or that were taken after that date. These rules came into effect on 1 January 2005:
"For photographs which were still in copyright on 1 January 2005, or which were created on or after that date, copyright now lasts until 70 years from the end of the year the photographer died.
"If the photographer is unknown or used a pseudonym, duration continues indefinitely until the photograph is published. Once it is published, duration will then last until 70 years from the end of the year in which it was published.
All photographs taken before 1 January 1955 are now out of copyright and do not benefit from the new rules."
Works held in Libraries
The National LibraryNational library
A national library is a library specifically established by the government of a country to serve as the preeminent repository of information for that country. Unlike public libraries, these rarely allow citizens to borrow books...
Picture Catalogue http://www.nla.gov.au/catalogue/pictures/ says that permission must be asked to copy photos from their site. However in the case of images taken before 1955, it is seen as possibly a request which has no legal basis because the images are public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
. Once something is in the public domain, the copyright belongs to everyone
Everyone
Everyone may refer to:* Everyone , a 2006 album by Reuben Morgan* Everyone , official theme song of the 2010 Summer Youth Olympics held in Singapore* Everyone , a 1970 song by Van Morrison...
. An argument
Argument
In philosophy and logic, an argument is an attempt to persuade someone of something, or give evidence or reasons for accepting a particular conclusion.Argument may also refer to:-Mathematics and computer science:...
given by the British Library
British Library
The British Library is the national library of the United Kingdom, and is the world's largest library in terms of total number of items. The library is a major research library, holding over 150 million items from every country in the world, in virtually all known languages and in many formats,...
online http://www.imagesonline.bl.uk/britishlibrary/ is that "The original work(s) are in the public domain, the copies the Library supplies are in copyright as they are new copies of the original materials which are what copyright is held. This is why you will need to clear permission."
The State Library of Victoria
State Library of Victoria
The State Library of Victoria is the central library of the state of Victoria, Australia, located in Melbourne. It is on the block bounded by Swanston, La Trobe, Russell, and Little Lonsdale streets, in the northern centre of the central business district...
, which does not hold copyright for some of its works says that "It must be stressed that obtaining permission to reproduce an item is not the same as copyright. The State Library of Victoria often does not hold the copyright for items in its collections" http://www.slv.vic.gov.au/about/using/copying/permission/index.html
Under the old pre-FTA system, all Australian photos taken before 1 January 1969 were out of copyright 50 years from when taken. After 1 January 1969, it was 50 years from the end of the year it was first published. Thus, when the FTA came into effect on 1 January 2005, only photos taken before 1 January 1955 were out of copyright under the old system. Now, for a photo taken on or after 1 January 1955, copyright for non-Crown Copyright photos is "life of creator plus 70". So all photos taken in 1955 are not going to become public domain at the end of 2005.
The copyright in the words for a newspaper article (or in a drawing
Drawing
Drawing is a form of visual art that makes use of any number of drawing instruments to mark a two-dimensional medium. Common instruments include graphite pencils, pen and ink, inked brushes, wax color pencils, crayons, charcoal, chalk, pastels, markers, styluses, and various metals .An artist who...
) is owned by the writer (or illustrator
Illustrator
An Illustrator is a narrative artist who specializes in enhancing writing by providing a visual representation that corresponds to the content of the associated text...
, etc.). If the writer died before 1 January 1955, then the work is out of copyright; alternatively if the author is unknown (and cannot be discovered by reasonable enquiry), and if first published before 1 January 1955, then the work is out of copyright. The copyright in the layout
Layout
Layout may refer to:* Page layout** Comprehensive layout** In computer graphics, another name for a scene used to render 2D/3D graphics or animation* Layout , software that automatically calculates the positions of objects...
expires 25 years after the end of the year in which it was first published. For artistic works other than photographs and engravings (so including drawings, paintings, sculpture) it was "life plus 50" and is now "life plus 70". If the creator is unknown, it was "first published plus 50" and is now "first published plus 70". So if the creator died before 1 January 1955 or is unknown and the work was first published before 1 January 1955, then the work is out of copyright. This "in general" applies even if the creator was an employee of the newspaper which holds the actual copyright. See the tables of the duration of copyright. http://www.copyright.org.au/pdf/acc/InfoSheets/G023.pdf
For artistic works other than photographs and engraving
Engraving
Engraving is the practice of incising a design on to a hard, usually flat surface, by cutting grooves into it. The result may be a decorated object in itself, as when silver, gold, steel, or glass are engraved, or may provide an intaglio printing plate, of copper or another metal, for printing...
s (so including drawings, paintings, sculpture
Sculpture
Sculpture is three-dimensional artwork created by shaping or combining hard materials—typically stone such as marble—or metal, glass, or wood. Softer materials can also be used, such as clay, textiles, plastics, polymers and softer metals...
) it was "life plus 50" and is now "life plus 70". If the creator is unknown, it was "first published plus 50" and is now "first published plus 70". So if the creator died before 1 January 1955 or is unknown and the work was first published before 1 January 1955, then the work is out of copyright. This "in general" applies even if the creator was an employee of the newspaper which holds the actual copyright.
Public
Public
In public relations and communication science, publics are groups of individuals, and the public is the totality of such groupings. This is a different concept to the sociological concept of the Öffentlichkeit or public sphere. The concept of a public has also been defined in political science,...
institutions would like to maintain that it is their reproduction of a Public Domain work which has a copyright attached, since they cannot claim that the author/artist's copyright exists. The UK government site is not clear about the status of faithful reproductions, mentioning that it may be possible to re-use a reproduction without permission, but also that the institution/photographer may claim copyright by virtue of the "skill
Skill
A skill is the learned capacity to carry out pre-determined results often with the minimum outlay of time, energy, or both. Skills can often be divided into domain-general and domain-specific skills...
and labour
Manual labour
Manual labour , manual or manual work is physical work done by people, most especially in contrast to that done by machines, and also to that done by working animals...
" which has gone into making the reproduction. However, the 1999 Bridgeman Art Library v. Corel Corporation ruling (in U.S. jurisdiction) runs counter to this view, and the institutions' stance has possibly not been tested in higher European or Australian courts. It is contestable whether these institutions would be able to demonstrate economic loss resulting from the republishing of one of their (low-resolution) reproductions in a non-profit/educational context on the web
World Wide Web
The World Wide Web is a system of interlinked hypertext documents accessed via the Internet...
(e.g., on Wikipedia
Wikipedia
Wikipedia is a free, web-based, collaborative, multilingual encyclopedia project supported by the non-profit Wikimedia Foundation. Its 20 million articles have been written collaboratively by volunteers around the world. Almost all of its articles can be edited by anyone with access to the site,...
), since they themselves have freely and similarly published these very same images. A further argument against the practices of these institutions can be read here http://englishhistory.net/tudor/art.html.
One view is that the National Library
National library
A national library is a library specifically established by the government of a country to serve as the preeminent repository of information for that country. Unlike public libraries, these rarely allow citizens to borrow books...
has probably not created a new work through the process of scanning the images and placing them online. So the images are still under public domain. A library may place you under contractual restrictions to use of a high quality reproduction.
For non-government photographs: if taken before 1 May 1969, copyright expires 50 years from the end of the year they were taken; on or after 1 May 1969, 50 years from the end of the year of first publication. Thus the interpretation that images made before 1955 are out of copyright. However, it would appear that this does not apply to government works. For works made by the government in or before 1969, copyright expires after 50 years; for those made after 1969 it expires 50 years from the date the work was first published. Copyright exists in perpetuity for photographs taken after 1 May 1969.
Comparison with American copyright law
- Works published outside the United States before 1978 without compliance with US formalities that are in the public domain in their home country as of 1 January 1996 are in the public domain in the United States. http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm
American Fair Use entitles the use of copyrighted material in articles directly about the copyrighted material, for such uses as parody or critique. A question has arisen as to what the status of copyright law is for material which is loaded onto an American site, from Australia, whether it falls under Australian or American copyright law. It has been regarded that images in the public domain in Australia are not necessarily so in the U.S. An image being in the public domain in Australia may not necessarily imply that it is in the public domain in the U.S.
The DMCA contains the following text which seems to imply that the US does not protect copyright once it has lapsed in its home country:
Restoration of Copyright Protection
Both treaties require parties to protect preexisting works from other member
countries that have not fallen into the public domain in the country of origin through
the expiry of the term of protection. A similar obligation is contained in both the
Berne Convention and the TRIPS Agreement.
However, Copyright is a national right, not an international one. The only reason why America recognises Australian copyright is because they have signed a treaty known as TRIPS, which is compulsory for countries who want to be members of the WTO.
Bridgeman v Corel
On 18 February 1999, the United States District Court for the Southern District of New York decided the case between the Bridgeman Art LibraryBridgeman Art Library
The Bridgeman Art Library, based in London, Paris, New York and Berlin, provides one of the largest archives for reproductions of works of art in the world...
which had photographic reproductions of works of art which were already in public domain available on the internet, which were used by the Corel
Corel
Corel Corporation from the abbreviation is a computer software company headquartered in Ottawa, Ontario, that specializes in graphics processing, similar to Adobe Systems...
corporation on a CD-ROM
CD-ROM
A CD-ROM is a pre-pressed compact disc that contains data accessible to, but not writable by, a computer for data storage and music playback. The 1985 “Yellow Book” standard developed by Sony and Philips adapted the format to hold any form of binary data....
. It was held that exact photographic copies of two-dimensional works in the public domain cannot be copyrighted—even if making the image takes considerable effort—because the resulting works lack originality. However, this case in American law does not necessarily reflect views on copyrightability outside of the U.S.
Copyright Act
sections 33 and 34 of the Copyright ActCopyright Act
Copyright Act may refer to:Canada* Copyright Act of CanadaHong Kong*Copyright Ordinance 1997India*New Zealand* Copyright Act 1994United Kingdom...
33 Duration of copyright in original works
(1) This section has effect subject to subsection 32(2) and to section 34.
(2) Subject to this section, copyright that subsists in a literary, dramatic, musical or artistic work by virtue of this Part continues to subsist until the end of 70 years after the end of the calendar year in which the author of the work died.
(3) If, before the death of the author of a literary work (other than a computer program) or a dramatic or musical work:
(a) the work had not been published; (b) the work had not been performed in public; (c) the work had not been broadcast; and (d) records of the work had not been offered or exposed for sale to the public; the copyright in the work continues to subsist until the end of 70 years after the end of the calendar year in which the work is first published, performed in public, or broadcast, or records of the work are first offered or exposed for sale to the public, whichever is the earliest of those events to happen.
(4) A reference in the last preceding subsection to the doing of an act in relation to a work shall be read as including a reference to the doing of that act in relation to an adaptation of the work.
(5) If, before the death of the author of an engraving, the engraving had not been published, the copyright in the engraving continues to subsist until the end of 70 years after the end of the calendar year in which the engraving is first published.
34 Duration of copyright in anonymous and pseudonymous works
(1) Subject to subsection (2), if the first publication of a literary, dramatic, musical or artistic work is anonymous or pseudonymous, any copyright subsisting in the work by virtue of this Part continues to subsist until the end of the period of 70 years after the end of the calendar year in which the work was first published.
(2) Subsection (1) does not apply in relation to a work if, at any time before the end of the period referred to in that subsection, the identity of the author of the work is generally known or can be ascertained by reasonable inquiry.
Duration of Crown copyright in original works
(1) Copyright in a literary, dramatic or musical work of which the Commonwealth or a State is the owner, or would, but for an agreement to which the last preceding section applies, be the owner:(a) where the work is unpublished—continues to subsist so long as the work remains unpublished; and
(b) where the work is published—subsists, or, if copyright in the work subsisted immediately before its first publication, continues to subsist, until the expiration of 50 years after the expiration of the calendar year in which the work was first published.
(2) Subject to the next succeeding subsection, copyright in an artistic work of which the Commonwealth or a State is the owner, or would, but for an agreement to which the last preceding section applies, be the owner, continues to subsist until the expiration of 50 years after the expiration of the calendar year in which the work was made.
(3) Copyright in an engraving or photograph of which the Commonwealth or a State is the owner, or would, but for an agreement to which the last preceding section applies, be the owner, continues to subsist until the expiration of 50 years after the expiration of the calendar year in which the engraving or photograph is first published.
Amendment by the FTA
There was no change to the day when you calculate the duration for photographs between the publication and the death of the author.(US FREE TRADE AGREEMENT IMPLEMENTATION ACT 2004 SCHEDULE 9)
120 Subsection 33(2)
Omit "50 years", substitute "70 years".
121 Subsections 33(3) and (5)
Omit "the expiration of 50 years after the expiration", substitute "the end of 70 years after the end".
122 Subsection 34(1)
Omit "50 years", substitute "70 years".
External links
- Copyright infosheet 11 pdf
- Berne conventionBerne Convention for the Protection of Literary and Artistic WorksThe Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :...
- copyright duration for various publications in Australia
- National Library copyright
- NLA pictures copyright
- British library online FAQ permission
- State Library of Victoria permission
- NPG copyright
- Intellectual property copyright UK
- The right to display public domain images
- COPYRIGHT ACT 1968 - SECT 180