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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? NO
There is no legislation protecting databases, but court authority protects it to a similar extent.		 Desktop Marketing
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 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
 In any other cases may reproductions be made on a private, noncommercial basis, for example through peer-to-peer file sharing? NO
 
 Are blank media and computer hardware sold free of compulsory levies collected for copyright owners? YES
 
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
 Is it permissible to copy an entire work and to make any number of copies? 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
 Does any such research and study provision cover distance and online education? YES
CA s.40
 May translations of works be made for educational purposes? LIMITED
The fair dealing criteria referred to above must be satisfied.		 CA s.40
 May works be reproduced and published by educational institutions in connection with systematic instructional activities? NO
Except in the case of insubstantial parts, or copies of a printed edition of a public domain work. However there is a compulsory licence scheme for the reproduction texts and broadcasts.		 CA s.135ZG, 135ZH, Parts VA, 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
 Is caching of Web content permitted? LIMITED
Only by educational institutions.		 CA s.200AAA
 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 a recording or performance of a musical work be made under compulsory license from the composer? YES
CA Part III, Division 6
 Can 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
 Is there a copyright exception for professional advice? YES
But only from legal practitioners and patent or trade mark attorneys.		 CA s.43
 Do creators who license their work retain the moral right of attribution? YES
CA Part IX
 Does copyright law contain provisions regarding traditional knowledge/folklore? NO
 
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
 Is the reproduction of unpublished works by libraries permitted? 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
 Are libraries allowed to make preservation or archive copies of materials in their collections? 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
 
 Is there a copyright exception for use of material in judicial proceedings? YES
CA s.43, 104

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
May a person in lawfully possession of a copyright work distribute, communicate or make it available without reference to the copyright owner? NO
The copyright owner's exclusive rights include a right to communicate the work to the public.		 CA s.31
May works be dedicated to the public domain without legal formality besides 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
 

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 registration of copyright required before it may be enforced in court? NO
 
Is there a distinction between personal versus (large-scale) commercial use? 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
Is any portion of the revenues of copyright collectives set aside for benevolent purposes? LIMITED
Two of the major copyright collecting societies, APRA and AMCOS, administer a number of grants and scholarships to support the industry.		  
Are copyright collectives precluded from using their revenues for political lobbying? NO
One of purposes of collecting societies in Australia declared in their industry code of conduct is to represent the the interests of creators and owners of copyright material.		  
Is copyright enforced only through mechanisms provided by law, rather than through private intermediaries? NO
Music Industry Piracy Investigations has secured the agreement of several local ISPs to a graduated response-style mechanism against those accused of sharing infringing copies of music files.		  
Is the enforcement of copyright restricted to civil or private law, rather than attracting criminal sanctions? NO
Where the infringement is on a commercial scale, criminal and quasi-criminal sanctions apply.		 CA part V
Are damages for copyright infringement based on the loss sustained, rather than by a preestablished or statutory damages award? YES
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 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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