Australia

Legal background

Scope and duration of copyright

Does copyright end immediately after the minimum period mandated by the Berne Convention? No
Literary and artistic works are protected for 70 years from the author's death, other works for 70 years from first publication (or 50 years for works published by the government).
CA s.33, 34
Has a court or tribunal ever limited the exercise of IP rights under competition law, for example by imposing compulsory licensing or regulating royalties charged by dominant rights holders? In part
Generally the exercise of copyright is excepted from competition law, except in cases of misuse of market power or resale price maintenance.
TPA s.51(3)
Has a court or tribunal ever limited the exercise of IP rights pursuant to a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech? In part
There is an implied constitutional guarantee of freedom of speech on political matters which could limit the exercise of government copyright to stifle political speech.
Nationwide News
Can databases of non-original material be reproduced without infringing a copyright or sui generis database right? Yes
There is no legislation protecting databases, but until recently court authority protects it to a similar extent. This authority was largely overturned in 2010.
Telstra
Are rights holders prohibited from excluding user rights under copyright law? In part
Only in respect of computer software. Other exceptions and limitations may be overridden by contract.
CA s.47H
Is computer software excluded from the scope of patentable subject matter? No
PA s.18

Freedoms to access and use

By Home UsersIs there any general user right that is based on a set of balancing criteria, such as a "fair use" right? In part
There is such an exception, based on the three-step test in the Berne Convention, but it only applies to educational and library uses and for those with disabilities.
CA s.200AB
Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)? Yes
However multiple copies or copies of copies may not be made (except of music), copies may not be lent or sold, copying of computer games is not permitted, and technological protection measures may not be circumvented.
CA s.43C, 47J, 109, 110AA, 111
Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes? In part
Backup copies can be made of computer programs and music, but not of other works unless another exception applies.
CA s.47C, 109
Can works be communicated to a limited public (for example, family and friends) without infringing copyright? In part
Copies made for format shifting purposes and copies of music may be lent within the household.
CA s.43C, 47J, 109, 110AA, 111
For EducationMay students copy works for private research or study? Yes
Subject however to fair dealing criteria, which include the possibility of obtaining the work within a reasonable time at an ordinary commercial price, and the effect of the dealing on the potential market for the work.
CA s.40
Does any such research and study provision cover distance and online education? In part
The fair dealing criteria referred to above must be satisfied. It is deemed to be a fair dealing to copy a periodical article, a single chapter of a published work, or 10% of such a work for the purposes of research or study.
CA s.40
May translations of works be made for educational purposes? Yes
CA s.40
May educators copy works for use in the classroom? In part
A collective licensing scheme applies. However it contains some quirks; for example, the relevant collecting society collects money for the reproduction of fee-free content, eg. Creative Commons licensed Web material.
CA Part VA and VB
OnlineAre temporary or transient copies, incidental to a lawful use, excepted from copyright? Yes
CA s.43A, 43B
Does the law exclude or limit the liability of intermediaries such as ISPs for copyright infringements carried out on their network? In part
In order to maintain such protection ISPs must expeditiously remove material from their networks if they become aware that it is likely to be infringing.
CA Part V, Division 2AA
Is Internet access free of ISP filtering or monitoring for potential copyright-infringements? Yes
By content creatorsIs there any protection for consumers who non-commercially remix or mash up copyright works? No
May computer software be reproduced or transformed for the purpose of reverse-engineering interoperable software? Yes
CA s.47D
Is the incidental inclusion of a work in other material permitted? In part
Incidental inclusion of artistic works in a film or television broadcast is permitted.
CA s.67
Is there are copyright exception for parody or satire? Yes
CA s.41A
By the pressIs there a copyright exception for the news of the day? Yes
A sufficient acknowledgment must be made.
CA s.42
May copyright material be reproduced for the purposes of review and criticism? Yes
A sufficient acknowledgment must be made.
CA s.41
May quotations be used for any purpose? No
As above, with the additional note that a quotation may not constitute a “substantial part” of a work necessary to constitute infringement.
By LibrariesMay libraries copy works if they cannot reasonably be obtained commercially? In part
For preservation, replacement or administrative purposes only.
CA s.51A, 51B, 110B, 110BA
May librarians copy works for users for the purpose of research or study? In part
Of periodicals only.
CA s.49
Are libraries allowed to make preservation or archive copies of materials in their collections? In part
For research or study, and except in the case of unpublished theses, only after 50 years from the author's death or when the work was made, as applicable.
CA s.51, 110A
Can lending libraries operate without incurring public lending rights fees to copyright owners? Yes
The Australian scheme only authorises payments to Australian creators of books, and to publishers of books in Australia, and money is not paid directly by libraries.
PLR
By disabled usersIs it permissible to copy or adapt work for the use of those with disabilities? In part
Institutions serving those with print or intellectual disabilities may do so subject to equitable remuneration being paid.
CA s.47A, Part VB Divisions 3, 4
In public affairsAre laws excluded from copyright? No
Are other governmental works either excluded from copyright, or routinely shared under permissive licences? Yes
Although copyright is maintained, the Federal Government's Statement of Intellectual Property Principles for Australian Government Agencies establishes Creative Commons Attribution as the default licence for public sector information. Some State governments such as Victoria have established similar policies.
Are the results of publicly funded research required to be published under an open access licence? No

Freedoms to share and transfer

Do copyright owners have the right to release their works to the public domain, without any limitation on how those works may be used? Yes
Can public domain works be used without the need for any payment or registration of the use? Yes
At law yes, though some archives nonetheless claim the right to charge for reproductions of public domain works.
Does the law make special provision for the legal use of orphaned works? No
Is parallel importation of copyright works permitted? In part
Parallel importation of books is restricted.
CA s.44A
Are there national programmes or policies to promote the use, production or dissemination of openly-licensed material such as free and open source software or open educational resources? No
Are there national programmes or policies that specify or promote the use of open document formats? No

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual? $93,500 or imprisonment for up to 5 years, or both. CA Part 5 Division 5
What is the maximum penalty for copyright infringement for a corporation? $467,500.00 CA Part 5 Division 5
Is innocent infringement of IP treated differently by the law? Yes
Commercial scale infringement is penalised more heavily.
CA s.132AC
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for legal purposes? No
Only for purposes of interoperability, encryption research, computer security testing or law enforcement and national security.
CA s.116AO
Is the use of such devices by consumers or intermediaries permitted in the legal exercise of user rights? No
Only where the purpose is prescribed by regulation.
CA s.116AN
Does national copyright or consumer protection law require that the effect of TPMs distributed with copyright works be disclosed to consumers? In part
The failure to disclose a material limitation on the functionality of goods can amount to misleading or deceptive conduct in trade or commerce.
TPA s.52
Are there cases in which the availability of injunctive relief for IP infringement is limited by the law on public policy grounds? No
Does the law protect a user's Internet access from being suspended for alleged copyright infringement, except after a hearing in court? Yes
Although a few small ISPs have capitulated to an industry body which sought to institute a graduated-response practice amongst Australian ISPs, the High Court iiNet case of 2012 has made clear that no such practice is legally required.
iiNet
Are criminal sanctions limited to cases of large-scale commercial counterfeiting? Yes
CA part V
Are damages for copyright infringement limited to the loss sustained, rather than a pre-established or statutory damages award? No
In general yes, however the court may consider various other factors in assessing damages.
CA s.115(4)
Is there provision to penalise the wrongful allegation of copyright infringement? Yes
Unjustifiable threats of legal proceedings for infringement of copyright or the circumvention of technological protection measures are prohibited.
CA s.202, 202A, Bell
Is there provision to penalise the obstruction of consumers' exercise of user rights? No
Does the patent system allow for pre-grant opposition? Yes
PA s.59

Recent or upcoming changes

Australia signed the Anti-Counterfeiting Trade Agreement on 1 October 2011, but giving the opinion that no changes to Austrailan law were required. This differs from the opinion of a prominent Australian academic on the issue. The Bell case decided this year was the first precedent for an award of damages for a wrongful allegation of online copyright infringement.

Summary of position

The evolution of Australia's copyright system in recent years has been strongly influenced by its trade relationship with the United States. This is evidenced by a number of recent “reforms” implementing the provisions of the Australia–United States Free Trade Agreement, that strongly favour copyright owners over consumers. These include the expansion of the default copyright term from 50 to 70 years and the introduction of a DMCA-style content takedown regime for ISPs (in 2004), and the strengthening of the prohibition on the circumvention of technical protection measures (in 2006). On the other hand there are a few respects in which Australia's law, whilst hardly a paragon, is commendable in attempting to balance the interests of copyright owners with those of consumers. Most notable are the 2006 amendments that sanctioned the near-universal practices of time, space and format shifting of copyright works, so that for example it is no longer illegal for a consumer to transfer music that they have legitimately purchased on CD onto an MP3 player, or to use a DVR. Even so, these provisions limit much personal copying that may be permissible elsewhere (even in the United States which has a broader “fair use” exception), such as making backup copies of DVD movies, computer games and digital photographs. Moreover, Australian law permits copyright owners to exercise broad powers of control over digital content through Digital Rights Management (DRM), which consumers are generally prohibited from circumventing. It is therefore hoped that the Australian government will continue to review the Copyright Act with the object of improving its fairness to consumers.

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