A global consumer network on Access to Knowledge and communications issues
Home › Consumers International IP Watchlist Report 2010 › Appendix A: Country reports

Australia

Tue, 16/12/2008 - 13:40 — Jeremy Malcolm

Legal background

Scope and duration of copyright

Is the period of protection of each type of copyright work limited to the minimum duration 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
Must a work be fixed in some material form before copyright attaches? NO
Is the exercise of copyright subject to competition law, for example by compulsory licensing or regulation of royalties in the case of copyright holders who misuse their monopoly power? LIMITED
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)
Is the exercise of copyright subject to compliance with a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech? LIMITED
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
Does the compilation of a database of non-original material fall outside the scope of copyright? 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
Do exceptions and limitations in national copyright law prevail over contracts purporting to limit or override them? LIMITED
Only in respect of computer software. Other exceptions and limitations may be overridden by contract.		 CA s.47H

Freedoms to access and use

By Home UsersIs there a general exception for the fair use of copyright material for any purpose that satisfies a set of balancing criteria? LIMITED
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? LIMITED
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? LIMITED
Copies made for format shifting purposes and copies of music may be lent within the household.		 CA s.43C, 47J, 109, 110AA, 111
Does a collective licensing scheme permit the copying or sharing of copyright material by consumers in exchange for a media or equipment levy? NO
For EducationIs reproduction permitted for the purposes of 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? LIMITED
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 works be reproduced and published by educational institutions in connection with systematic instructional activities? LIMITED
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
OnlineIs hyperlinking to a Web site allowed without permission of the site's owner? LIMITED
Deep linking may amount to authorisation of infringement of copyright.		 Cooper
Are temporary or transient copies, incidental to a lawful use, excepted from copyright? YES
CA s.43A, 43B
Are ISPs protected from liability for infringements by third parties, because the law either does not impose liability upon intermediaries or limits their liability in certain circumstances? LIMITED
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
Do ISPs provide Internet access without conducting filtering or monitoring for potential copyright-infringing material? YES
Are the names and personal information of customers who are alleged to have engaged in copyright-infringing behaviour protected from disclosure by their ISPs? NO
Copyright owners may apply to court for subpoenas to produce the names and personal information of such customers.
By content creatorsCan copyright works be non-commercially remixed or mashed up into new works? NO
May computer software be reverse engineered for the purpose of creating interoperable software? YES
CA s.47D
Is the incidental inclusion of a work in other material permitted? LIMITED
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
Do creators who license their work retain the moral right of attribution? YES
CA Part IX
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 political speeches, speeches in judicial proceedings and/or other public speeches be used for any purpose? NO
There is no separate copyright exception allowing speeches to be reproduced except for a permitted “fair dealing” purpose.
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 that cannot reasonably be obtained commercially? LIMITED
For preservation, replacement or administrative purposes only.		 CA s.51A, 51B, 110B, 110BA
May libraries copy works for users for the purpose of research or study? LIMITED
Of periodicals only.		 CA s.49
Are libraries allowed to make preservation or archive copies of materials in their collections? LIMITED
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
In making permitted copies, are libraries entitled to circumvent technological protection mechanisms (TPMs)? YES
CA s.51A
By disabled usersIs it permissible to copy or adapt work for the use of those with disabilities? LIMITED
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 excluded from copyright? NO
However the Victorian Government has adopted open access as the default position for the management of PSI and commits to the development of a framework making PSI available under Creative Commons licensing by default with a tailored suite of licences for restricted materials.
Is there a copyright exception for use of material in judicial proceedings? YES
CA s.43, 104
Are the results of publicly funded research required to be published under an open access license? NO

Freedoms to share and transfer

May copyright works be freely offered for commercial rental? LIMITED
Not sound recordings (or works incorporating them) or computer software.		 CA s.31, 85
Does the law permit a work to be released to the public domain before the copyright term expires, without any formality other than an overt act of relinquishment? YES
Are orphaned works treated differently in the law to other copyright works, for example by allowing them to be compulsorily licenced, limiting remedies, or by releasing them into the public domain? NO
Is parallel importation permitted? LIMITED
Parallel importation of books is restricted.		 CA s.44A
Are there incentives for the use, production and dissemination of free and open source software within copyright law or elsewhere in national law/policy? NO
Are there incentives for the use, production and dissemination of open access material (e.g. textbooks) within copyright law or elsewhere in national law / policy? NO
Are there specifications or incentives in national law/policy for 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
Do the penalties for copyright infringement distinguish between personal versus (large-scale) commercial use, other than at the discretion of a judge? 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 purposes that would not infringe copyright? 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 permitted for any purpose that would not infringe copyright? NO
Only where the purpose is prescribed by regulation.		 CA s.116AN
Does national copyright or consumer protection law require disclosure to consumers of the existence of TPMs and any potential limitations on the use of TPM-protected material? LIMITED
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 the operations of copyright collectives subject to public oversight? LIMITED
Collecting societies that collect equitable remuneration under statutory licenses must lodge an annual report of their activities which is laid before Parliament.		 CA s.135R
Are ISPs independent of copyright owners, to the extent that no law or industry code of conduct requires them to notify their users who are alleged to have committed a copyright infringement online? YES
Although a few small ISPs have capitulated to an industry body which sought to institute a graduated-response practice amongst Australian ISPs, the iiNet case of 2010 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 based on the loss sustained, rather than by 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

Conclusions

The evolution of Australia's copyrighti 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 (DRMi), 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.

Creative Commons license icon
This work is licensed under a Attribution Share Alike Creative Commons license