What forms of work are protected by copyright in your jurisdiction
and what is the duration of protection for each type of work? If certain
categories of work are protected by related rights please also give
Australian copyright law protects original works, including literary,
dramatic, artistic, and musical works (part III). Copyright also
protects subject matter other than works, including cinematographic
films, sound recordings, television and sound recordings and published
editions of works (part IV). Computer programs are defined as a form of
literary work (section 10).
In the case of works, the term of copyright is generally the life of
the author plus 70 years (section 33(2)). This period is extended in the
case of literary, dramatic and musical works that have not been
published, performed in public or broadcast before the death of the
author, or if records of the work had not been offered or exposed for
sale to the public before his or her death. In these cases the term of
copyright is extended until 70 years after the happening of any of these
events (section 33(3)). There is no similar extension for artistic
In the case of cinematographic films, sound recordings, the term of
copyright is 70 years after the date of first publication (section
93-94). The term of copyright for television and sound broadcasts is
generally 50 years after the broadcast was made, and for published
editions of works, is 25 years after the edition was published (sections
Specific categories of work are protected by neighbouring rights,
including the rights of the performer and a new resale royalty right for
visual artists. (The rights of phonogram producers and broadcasts
organisations, which are in some jurisdictions considered neighbouring
rights, are protected under part III of the Act)
A performer has the right to prevent the making of a recording of a
performance and the communication of a performance to the public without
permission (section 248G). This protection extends to dramatic, musical
and literary works as well as improvisations, dance, circus and variety
acts and expressions of folklore (section 248A). The resale royalty
scheme applies to original works of visual art and entitles an
identified artist to five per cent when an artwork is resold in the
commercial art market.
What international copyright treaties is your country a signatory to?
Australia is signatory to the following WIPO administered treaties:
the Berne Convention (1886), the Rome Convention (1961), the Phonograms
Convention (1971) and the Brussels Convention (1974). It is also
signatory to the Universal Copyright Convention (1952) and the TRIPs
Are databases and compilations protected by copyright in your
jurisdiction? Is there a separate database protection right available?
Databases and compilations are prima facie protected by copyright law as literary works, however the High Court's decision in IceTV Pty Ltd v Nine Network Pty
(2009) and decisions that have followed highlight the limitation of
copyright as a means to protect these types of works. In particular, the
decisions indicate that copyright will not subsist in compilations
merely because of the expenditure of time and effort in their creation
(the so called sweat of the brow test) but require some degree of
creative intellectual effort that is directed to the expression of the
work. The cases also emphasise the need to identify a human author of
the compilation or database so that copyright is unlikely to subsist in
computer generated works after another recent important case Telstra Corp Ltd v Phone Directories Co (2010).
There is no separate database protection right in Australia.
Is there any system to register copyright in your jurisdiction? If
so, what are the advantages to securing registration and what is the
implication of failure to register?
There is no system of copyright registration in Australia.
What are the most important recent copyright decisions in your jurisdiction?
IceTV Pty Ltd v Nine Network Pty Limited (2009); Telstra Corporation Ltd v Phone Directories Co Pty Ltd (2010); Roadshow Films Pty Limited v iiNet Limited (2011).
What copyright collecting societies are there in your jurisdiction?
Please provide a brief summary of the rights represented by each
The Phonographic Performance Company of Australia Ltd (PPCA)
represents the interests of owners and controllers of copyright in sound
recordings by licensing Australian businesses to play those recordings
The Australasian Performing Right Association (APRA) represents
songwriters by licensing the public performance and communication of
their musical works, whereas the Australasian Mechanical Copyright
Owners Society (AMCOS) licenses the mechanical reproduction of those
The Audio-Visual Copyright Society Limited (which is known as
Screenrights) represents owners of literary, dramatic, musical and
artistic works, and owners of copyright in broadcasts, sound recordings
and cinematographic films by licensing the use of audiovisual material
to schools, universities and other educational institutions in
Australia. Screenrights also represents the owners of copyright
television broadcasts by licensing the re-transmission of free to air
The Copyright Agency Limited (CAL) represents owners of literary,
dramatic, musical and artistic works by licensing the copying of their
works by educational institutions, government agencies, corporations,
associations, religious and other organisations.
Does your territory have a Copyright Tribunal or equivalent body
which regulates the terms on which copyright collecting societies can
While the Australian Copyright Tribunal does not have a general power
to regulate the terms on which a collecting society can grant a
licence, it may, in limited circumstances (including when a collecting
society refers a proposed licence scheme to it, or where a dispute
arises in relation to an existing licence scheme) make an order
confirming or varying a licence scheme, or substituting a licence scheme
for another scheme proposed by one of the parties to the Tribunal
Which government department is responsible for dealing with copyright issues?
Australia does not have a separate government department for dealing
with copyright issues. Copyright issues are generally dealt with by the
How does copyright protection interact with the protection afforded to designs?
Australian copyright law includes complex copyright-design overlap
provisions which are designed to prevent dual protection under the
Designs Act and the Copyright Act (so copyright protection is lost).
Artistic works exploited in two dimensions as visual features of
pattern or ornamentation, such as embroidery, remain excluded from the
definition of corresponding design and remains protected under Copyright
Law (section 74).
If an owner of copyright in an artistic work has exploited the work
as a three dimensional design, it cannot rely on copyright protection to
prevent another person making an identical or a substantially identical
product, if the design is registered or (if it is not registered), more
than 50 products made to the design have been produced (section 77).
How does copyright protection interact with the protection afforded to trade marks?
Unlike the complex copyright-design overlap provisions, there has
never been the same concern for the dual protection afforded to artistic
works registered as trade marks.
As such, certain types of copyright works can be protected by both
copyright and trade mark law. For example, an artistic work could be
protected both by copyright and trade mark law if the artistic work is
registered as a trade mark.
However, as the purposes of copyright law and trade mark law are
different, the overlap in protection offered from infringement is
minimal. As trade mark law concerns brand protection, the inquiry into
infringement focuses on a sign being 'substantially identical or
deceptively similar'. Alternatively, copyright focuses on the copying of
a substantial part of an artistic work. As the infringing conduct is
different, there is minimal protection overlap.
What legislation is in place to try and crack down on online copyright infringement?
There is no specific legislation dealing with online copyright
infringement although the Copyright Act contains safe harbour provisions
which largely (although not exactly) mirror the safe harbours in the US
Is there a fair use or fair dealing type provision in your copyright law?
Yes, there are specific defences that relate to fair dealings with
copyright works or subject matter other than works, this includes fair
use for the purpose of research or study, criticism or review, parody or
satire, reporting the news, or for the purpose of judicial proceedings
or giving legal advice (sections 40-43 and 103 A-C). In some cases the
ability to rely on the defence is contingent on a sufficient
acknowledgment of the work being made. There is no general fair use
defence outside these specific categories.
Is there a private copying exemption in your copyright law? If so,
is there some form of equitable or other remuneration or levy provided
for in your law to compensate rights owners?
Yes, in Australia a private copying exemption is available where an
individual makes a cinematograph film or sound recording of a broadcast
solely for their private and domestic use to allow them to view or
listen to the recording at a more convenient time (section 111(1)). The
availability of the exception is conditional upon the individual not
selling, distributing for trade or allowing the film or recording to be
seen or heard in public (section 111(2)).
There is no form of equitable or other remuneration or levy provided in compensation to rights owners.
Are any other exceptions to infringement provided for in your law?
(Other than those specified in answer to questions 12 and 13 above.)
Further to the fair dealing defences for research and study, there
are other educational use exceptions, including: performances and
communications of copyright material in class (section 28), inclusion of
a short extract or adaption of a published work in a collection of
works that is primarily non-copyright material with acknowledgement
(section 44), small extracts from literary and dramatics works for the
purpose of education (sections 135ZG), examination questions and answers
(section 200), assistance for readers with a print or intellectual
disability (section 135ZN) and proxy web caching if the computer system
is operated primarily for educational purposes (section 200AAA).
Libraries and archives also have specific exceptions to reproduce
material in their collections, including: electronic copying and
transmission of material for specific purposes such as responding to a
library user for the purposes of research or study (section 49),
libraries may also provide access to material acquired in digital form
(with limitations) (section 49(5A)).
A limited special cases exception exists for cultural and educational
institutions and individuals with print disabilities. The conditions
reflect the three-step test of the Berne Convention. The exception
applies if: the circumstances amount to a special case, the use does not
conflict with a normal exploitation of the work or other subject-matter
and the use does not unreasonably prejudice the legitimate interests of
the owner of the copyright. The exception will not apply if it is made
to obtain a commercial advantage or profit (section 200AB).
In what ways can copyright be enforced in your jurisdiction?
Copyright can be enforced in Australia through a civil action brought
by the copyright owner or an exclusive licensee for copyright
infringement (section 115).
There are also criminal sanctions which can be prosecuted by the
Crown (sections 132 AA- 132AS). The offences include importing, selling
or hiring, making and performing infringing articles and devices on a
commercial scale and circumvention of technological protection measures.
There are three categories of offences: indictable offences requiring
proof of intent or recklessness; summary offences requiring proof of
negligence and strict liability requiring no fault element. Criminal
offences are prosecuted pursuant to the Criminal Code. Penalties for
indictable offences include fines and custodial sentences of up to five
What are the typical remedy options? How are damages awards calculated?
The most typical remedy options in copyright infringement proceedings
include interlocutory and final injunctions, compensatory damages, an
account of profits and additional damages (section 115).
The Act provides for different types of awards of damages including
compensatory damages (section 115(2)), damages for conversion or
detention of infringing copies (section 116(1)) and additional damages
Compensatory damages mean the copyright owner is entitled to an
amount that would restore them to the position they would have been in
if the infringement had not occurred. Damages are generally calculated
using either the licence fee or loss of profits methods. In
circumstances where a licence fee would have been offered to the
infringer, the appropriate method is to calculate the amount of the
(hypothetical) licence fee that the copyright owner would have received
off the infringer. Alternatively, where a licence would not have been
granted, a copyright owner may receive an amount which reflects any loss
of profits which is attributable to the defendant's infringing
activity. Other relevant factors to compensation are broad and extensive
and may include the distress caused or harm done to other intangible
values such as cultural values, goodwill or reputation.
The court has the power to award additional (or punitive) damages at
its discretion (section 115(4)). The court can have regard to the
flagrancy of the infringement, the need to deter similar infringements,
the conduct of the defendant after committing the infringing act and any
benefit that accrued to the defendant. There is no proportionate
relationship between compensatory damages and additional damages, it
entirely relates to the conduct of the defendant.
A copyright owner has the right to bring an action for conversion or
detention in relation to infringing copies and any device for use in
making them (section 116). Relief for conversion, and the amount of
damages payable if relief is granted, is at the discretion of the court.
No relief is to be granted if the court considers remedies under
section 115 sufficient. If only part of any article consists of
infringing material, an adjustment may be calculated on the grounds of
the value add and severability of the infringing material to the product
as a whole.
If the court finds an infringement was innocent, where the defendant
was unaware and had no reasonable grounds for suspecting that they were
infringing copyright, damages are unavailable (section 115(3)). In these
circumstances, a court at its discretion can award an account of
The copyright owner is entitled to the amount of profit made by the
defendant that may fairly be attributed to the infringing act. It may be
necessary to apportion the total profit or deduct costs where profits
cannot be solely attributed to the infringing articles or infringing
articles represent part of a whole.
Where does the burden of proof lie in copyright infringement litigation?
The burden of proof lies on the plaintiff (copyright owner) when
bringing a claim for copyright infringement. The standard of proof
required for copyright infringement in civil cases is the balance of
probabilities. The case law indicates that the requisite strength of
evidence will depend on the fact in issue and what is sought to be
In seeking to rely on a statutory defence, the onus of proof shifts
to the defendant. The burden of proof is on the defendant to demonstrate
their use of copyright material fell within one of the excepted uses.
What are the alternatives to litigation?
Alternatives to litigation include obtaining undertakings from
(actual or potential) infringers, arbitration or mediation. The Act does
not specifically require parties to attend Alternative Dispute
Resolutions (ADR) it is regularly used in Australian proceedings prior
Are grants of copyright in your territory subject to any rights of
termination or reversion (other than contractual termination rights set
out in grant of rights)?
Copyright subsists in relevant works automatically and cannot be terminated or reverted since its subsists.
Does your territory recognise moral rights? If so, please specify the types of moral right which it recognises.
Yes, Australian copyright law recognises the moral rights of
performers and of authors of literary, dramatic, musical and artistic
works and cinematograph films. Moral rights are conferred on individual
authors and performers only. Performers include those who contribute to
the sounds of a live or recorded performance, including a conductor
(sections 189 and 191B). The traditional notion of author is extended to
include the maker of a film, meaning the right is available to the
principal director, principal producer and principal screenwriter of a
cinametograph film (section 189 and 191).
There are three moral rights granted to authors and performers: a
right to be identified as the author or performer of the work (sections
193 and 195ABA), a right not to have authorship or performership falsely
attributed (sections 195AC and 195AHA), and a right not to have their
work subjected to treatment that would be prejudicial to their honour or
reputation (sections 195AI and 195ALA).
The duration of a performers and authors moral right varies based on the right being protected (sections 195AM and 195ANA).
Are there any other issues relevant to your jurisdiction?
The Federal Government has foreshadowed a further review of copyright
laws by the Australian Law Reform Commission (ALRC) sometime in 2012 or
Michael is the head of Gilbert + Tobin’s IP group. Michael is a specialist in IP litigation, with well-recognised experience in handing difficult, complex or strategically important IP cases in Australia, advising a range of Australian and international clients.
Michael is experienced in Federal and Supreme Court litigation in Australia. He has a successful track record in complex multi-party litigation at trial and appeal, particularly in copyright cases. These include representing the major international film studios in their groundbreaking action against an Australian internet service provider, (Roadshow v iiNet) the IceTV case, Kazaa and Cooper.
Cameron’s practice includes IP litigation and commercial advice, focusing on copyright, data protection and enforcement issues. Cameron’s experience includes advising on the Ice TV proceedings in the Australian High Court concerning copyright in data compilations, enforcement proceedings regarding copyright protection in gaming machines and Federal Court proceedings involving the circumvention of DVD copyright protection.