Recent changes to the duration of copyright
Changes to the duration of certain types of copyright have been made by the Copyright Amendment (Disability Access and Other Measures) Act 2017 (Cth) that took effect on 1 January 2019. The main change is to abolish perpetual copyright in unpublished materials, so as to enable the use of such materials held in libraries and archives.
Also, the meaning of ‘publish’ has been expanded with a new definition of ‘made public’ (s 29A Copyright Act 1968 (Cth) (‘Copyright Act’)). This new definition includes more actions that will be used when determining the term of copyright; these new actions include communicating to the public (e.g. over the internet), exhibiting an artistic work in public, constructing a building, showing a film in public, and allowing a sound recording to be heard in public. However, no publication counts unless it is made by, or with the permission of, the copyright owner (ss 29, 29A).
Duration of copyright
For the purpose of this ‘Duration of copyright’ section:
- ‘Life plus 70’ = Copyright lasts for 70 years after 31 December of the year the author died (or, in the case of works of joint ownership, the year the last author died).
- ‘Publication plus 70’ = Copyright lasts for 70 years after 31 December of the year the work was first published or made public.
- ‘Making plus 70’ = Copyright lasts for 70 years after 31 December of the year the work was made.
Copyright in literary, artistic, dramatic or musical works normally lasts for life plus 70.
For works made public before 1 January 2019, copyright lasts for life plus 70 unless the author died before the work was made public, in which case copyright lasts for publication plus 70.
For works not first made public before 1 January 2019 (i.e. works made public on or after that date or never made public), where the author is known, copyright for all types of works lasts for life plus 70, whether or not the work is made public (s 33 Copyright Act).
If a work was first made public before 1 January 2019 and the author is not known, copyright lasts for publication plus 70.
If the work was not first made public before 1 January 2019, there is a two-step process to determine the duration of copyright. If the work is not first made public before the end of 50 years after 31 December of the year in which the work was made, copyright lasts for making plus 70 (s 33 Copyright Act). However, if the anonymous work is first made public in the initial 50-year period, the copyright term is extended to publication plus 70. (This adds up to 50 years to the copyright term, which is a clear incentive to make a work public.)
Sound recordings and films
If sound recordings and films have never been made public, their copyright term is making plus 70 (i.e. there is no perpetual copyright) (ss 93, 94 Copyright Act).
For sounds recordings and films that were first made public before 1 January 2019, the copyright term is publication plus 70.
For sound recordings and films that were first made public on or after 1 January 2019, there is a two-step process for calculating the term of copyright: if the recordings or films are not made public within 50 years of being created, the copyright term is making plus 70. If the recordings or films are first made public within 50 years of being created, the copyright term is publication plus 70.
Copyright lasts for 70 years after 31 December of the year the broadcast was made.
However, if the same material is broadcast on more than one occasion, the copyright period for the second broadcast is the same period that applied to the first broadcast (s 95 Copyright Act). For example, if a television program first aired on 5 November 2010, and was repeated on 5 November 2015, both broadcasts would be out of copyright on 1 January 2081.
Copyright in published editions lasts for 25 years from 31 December of the year in which the edition was first published (s 96 Copyright Act).
Earlier changes to the duration of copyright
Previous changes to the duration of copyright meant that copyright would have already expired for certain works and sound recordings that were made, or published, or where the author had died, before 1 January 1955; or, in some cases, before 1 January 1948. This means it is quite complicated to work out whether some works are still in copyright.
In addition, there was no copyright in films made before 1 May 1969, although these films were protected as if they were dramatic works. The photographs forming part of the film were also protected (ss 221–222 Copyright Act).