Australia: Copyright

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 details.

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 works.

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 95-96).

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 Agreement.

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 society.

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 in public.

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 works.

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 broadcasts.

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 grant licences?

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 proceedings.

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 Attorney-General's department.

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 DMCA.

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 years.

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 (section 115(4)).

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 profits.

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 proved.

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 to litigation.

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 2013.

Michael Williams

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 Andrews

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.