The Copyright Amendment (Disability Access and Other Measures) Act 2017(Cth) will take effect on 1 January 2019 and will affect copyrights subsisting at that time. The Act makes a number of changes to the duration of copyright material, and fixes a term for unpublished works. Below is a summary of the law as it currently stands.
Changes to the duration of certain types of copyright have been made by the Copyright Amendment (Disability Access and Other Measures) Act 2017 (Cth) that took effect on 1 January 2019. The main change is to abolish perpetual copyright, so as to enable the use of unpublished works held in libraries and archives.
Also, the meaning of “publish” has been expanded with a new definition of “made public” (s 29A). This new definition includes more actions that will be used when determining the term of copyright; these new actions include communicating to the public (e.g. over the internet), exhibiting an artistic work in public, constructing a building, showing a film in public, and allowing a sound recording to be heard in public.
However, no publication counts unless it is made by, or with the permission of, the copyright owner (ss 29, 29A).
• “Life plus 70” = Copyright lasts for 70 years after 31 December of the year the author died (or, in the case of works of joint ownership, the year the last author died).
• “Publication plus 70” = Copyright lasts for 70 years after 31 December of the year the work was first published or made public.
• “Making plus 70” = Copyright lasts for 70 years after 31 December of the year the work was made.
Copyright in literary, artistic, dramatic or musical works normally lasts for life plus 70.
From 1 January 2019, for works made public before that date, copyright lasts for life plus 70 unless the author died before the work was made public, in which case copyright lasts for publication plus 70.
For works not first made public before 1 January 2019 (i.e. works made public after that date or never made public), where the author is known, copyright for all types of works lasts for life plus 70, whether or not the work is made public (new s 33).
From 1 January 2019, if the author of a work that was first made public before 1 January 2019 is not known, copyright lasts for publication plus 70.
If the work was not first made public before 1 January 2019, there is a two-step process to determine the duration of copyright. If the work is not first made public before the end of 50 years after 31 December of the year in which the work was made, copyright lasts for making plus 70 (new s 33). However, if the anonymous work is first made public in the initial 50-year period, the copyright term is extended to publication plus 70. (This adds up to 50 years to the copyright term, which is a clear incentive to make a work public.)
From 1 January 2019, if sound recordings and films have never been made public, their copyright term is making plus 70 (i.e. there is no perpetual copyright) (ss 93, 94).
For sounds recordings and films that were first made public before 1 January 2019, the copyright term is publication plus 70.
For sound recordings and films that were first made public after 1 January 2019, there is a two-step process for calculating the term of copyright: if the recordings or films are not made public within 50 years of being created, the copyright term is making plus 70. If the recordings or films are first made public within 50 years of being created, the copyright term is publication plus 70.
Copyright lasts for 70 years after 31 December of the year the broadcast was made. However, if the same material is broadcast on more than one occasion, the copyright period for the second broadcast is the same period that applied to the first broadcast (s 95).For example, if a television program first aired on 5 November 1990, and was repeated on 5 November 1995, both broadcasts would be out of copyright on 1 January 2061.
Copyright in published editions lasts for 25 years from 31 December of the year in which the edition was first published (s 96).
Previous changes to the duration of copyright meant that copyright would have already expired for certain works and sound recordings that were made, or published, or where the author had died, before 1 January 1955; or, in some cases, before 1 January 1948. This means it is quite complicated to work out whether some works are still in copyright.
In addition, there was no copyright in films made before 1 May 1969, although these films were protected as if they were dramatic works. The photographs forming part of the film were also protected (s 222).