Copyright expiration in Australia

Copyright expiration in Australia is generally either 50 or 70 years after a work was created. The law has evolved over the years, and photographs are treated differently from other published work. Generally, anonymous works created before 1955 are no longer copyright. If the author is known, copyright is 50 years after the author's death, if the photograph was created before 1955; it is 70 years after the photographer's death if the photograph was created after 1955.

Copyright for works other than photographs are based on when the creator dies, while photographs are public domain if taken before 1955.

Public domain photos before 1955

Photographs taken before 1955 are now in the public domain
Photographs taken since 1955 will not be in the public domain until 1 January 2026 at the earliest, unless under crown copyright which expires 50 years after first publication.

Any Australian photo, published or unpublished, anonymous or attributed, taken before 1 January 1955 is out of copyright and in the public domain. The Australian Copyright Council is quite specific and unambiguous in regard to copyright law on photographs taken prior to 1 January 1955:

"If photographs were taken prior to 1 January 1955, copyright has now expired."^[1]

"The duration of copyright in photographs has changed significantly as a result of Australia implementing its obligations under the Australia-US Free Trade Agreement (AUSFTA). New rules have been introduced to determine the duration of photographs that were still protected by copyright on 1 January 2005 or that were taken after that date. These rules came into effect on 1 January 2005:

"For photographs which were still in copyright on 1 January 2005, or which were created on or after that date, copyright now lasts until 70 years from the end of the year the photographer died.

"If the photographer is unknown or used a pseudonym, duration continues indefinitely until the photograph is published. Once it is published, duration will then last until 70 years from the end of the year in which it was published

"All photographs taken before 1 January 1955 are now out of copyright and do not benefit from the new rules.".^[2]

Works held in Libraries

The National Library Picture Catalogue^[3] states that permission must be asked to copy photos from their site. However, in the case of images taken before 1955, it is seen as possibly being a request with no legal basis because the images are public domain. Once something is in the public domain, the copyright belongs to everyone. An argument given by the British Library online^[4] is that "The original work(s) are in the public domain, the copies the Library supplies are in copyright as they are new copies of the original materials which are what copyright is held. This is why you will need to clear permission." The National Library, for its part, states that photographs taken before 1 January 1955 are indeed "all out of copyright", but requires a formal declaration of intent to publish, and an acknowledgement of the National Library "as custodian of the material"^[5] The State Library of Victoria, which does not hold copyright for some of its works says that "It must be stressed that obtaining permission to reproduce an item is not the same as copyright. The State Library of Victoria often does not hold the copyright for items in its collections" ^[6]

Under the old pre-FTA system, all Australian photos taken before 1 January 1969 were out of copyright 50 years from when taken. After 1 January 1969, it was 50 years from the end of the year it was first published. Thus, when the FTA came into effect on 1 January 2005, only photos taken before 1 January 1955 were out of copyright under the old system. Now, for a photo taken on or after 1 January 1955, copyright for non-Crown Copyright photos is "life of creator plus 70". So all photos taken in 1955 are not going to become public domain at the end of 2005.

The copyright in the words for a newspaper article (or in a drawing) is owned by the writer (or illustrator, etc.). If the writer died before 1 January 1955, then the work is out of copyright; alternatively if the author is unknown (and cannot be discovered by reasonable enquiry), and if first published before 1 January 1955, then the work is out of copyright. The copyright in the layout expires 25 years after the end of the year in which it was first published. For artistic works other than photographs and engravings (so including drawings, paintings, sculpture) it was "life plus 50" and is now "life plus 70". If the creator is unknown, it was "first published plus 50" and is now "first published plus 70". So if the creator died before 1 January 1955 or is unknown and the work was first published before 1 January 1955, then the work is out of copyright. This "in general" applies even if the creator was an employee of the newspaper which holds the actual copyright.^[7]

For artistic works other than photographs and engravings (so including drawings, paintings, sculpture) it was "life plus 50" and is now "life plus 70". If the creator is unknown, it was "first published plus 50" and is now "first published plus 70". So if the creator died before 1 January 1955 or is unknown and the work was first published before 1 January 1955, then the work is out of copyright. This "in general" applies even if the creator was an employee of the newspaper which holds the actual copyright.

For non-government photographs: if taken before 1 May 1969, copyright expires 50 years from the end of the year they were taken; on or after 1 May 1969, 50 years from the end of the year of first publication. Thus the interpretation that images made before 1955 are out of copyright. However, it would appear that this does not apply to government works. For works made by the government in or before 1969, copyright expires after 50 years; for those made after 1969 it expires 50 years from the date the work was first published. Copyright exists in perpetuity for photographs taken after 1 May 1969.

Comparison with American copyright law

Works published outside the United States before 1978 without compliance with US formalities that are in the public domain in their home country as of 1 January 1996 are in the public domain in the United States.^[8]

American Fair Use entitles the use of copyrighted material in articles directly about the copyrighted material, for such uses as parody or critique. A question has arisen as to what the status of copyright law is for material which is loaded onto an American site, from Australia, whether it falls under Australian or American copyright law. It has been regarded that images in the public domain in Australia are not necessarily so in the U.S. An image being in the public domain in Australia may not necessarily imply that it is in the public domain in the U.S.

The DMCA contains the following text which seems to imply that the US does not protect copyright once it has lapsed in its home country:

Restoration of Copyright Protection Both treaties require parties to protect preexisting works from other member countries that have not fallen into the public domain in the country of origin through the expiry of the term of protection. A similar obligation is contained in both the Berne Convention and the TRIPS Agreement.

Legal Text

Copyright Act

sections 33 and 34 of the Copyright Act

33 Duration of copyright in original works

(1) This section has effect subject to subsection 32(2) and to section 34.

(2) Subject to this section, copyright that subsists in a literary, dramatic, musical or artistic work by virtue of this Part continues to subsist until the end of 70 years after the end of the calendar year in which the author of the work died.

(3) If, before the death of the author of a literary work (other than a computer program) or a dramatic or musical work:

(a) the work had not been published; (b) the work had not been performed in public; (c) the work had not been broadcast; and (d) records of the work had not been offered or exposed for sale to the public; the copyright in the work continues to subsist until the end of 70 years after the end of the calendar year in which the work is first published, performed in public, or broadcast, or records of the work are first offered or exposed for sale to the public, whichever is the earliest of those events to happen.

(4) A reference in the last preceding subsection to the doing of an act in relation to a work shall be read as including a reference to the doing of that act in relation to an adaptation of the work.

(5) If, before the death of the author of an engraving, the engraving had not been published, the copyright in the engraving continues to subsist until the end of 70 years after the end of the calendar year in which the engraving is first published.

34 Duration of copyright in anonymous and pseudonymous works

(1) Subject to subsection (2), if the first publication of a literary, dramatic, musical or artistic work is anonymous or pseudonymous, any copyright subsisting in the work by virtue of this Part continues to subsist until the end of the period of 70 years after the end of the calendar year in which the work was first published.

(2) Subsection (1) does not apply in relation to a work if, at any time before the end of the period referred to in that subsection, the identity of the author of the work is generally known or can be ascertained by reasonable inquiry.

Duration of Crown copyright in original works

(1) Copyright in a literary, dramatic or musical work of which the Commonwealth or a State is the owner, or would, but for an agreement to which the last preceding section applies, be the owner:

(a) where the work is unpublished—continues to subsist so long as the work remains unpublished; and

(b) where the work is published—subsists, or, if copyright in the work subsisted immediately before its first publication, continues to subsist, until the expiration of 50 years after the expiration of the calendar year in which the work was first published.

(2) Subject to the next succeeding subsection, copyright in an artistic work of which the Commonwealth or a State is the owner, or would, but for an agreement to which the last preceding section applies, be the owner, continues to subsist until the expiration of 50 years after the expiration of the calendar year in which the work was made.

(3) Copyright in an engraving or photograph of which the Commonwealth or a State is the owner, or would, but for an agreement to which the last preceding section applies, be the owner, continues to subsist until the expiration of 50 years after the expiration of the calendar year in which the engraving or photograph is first published.

Amendment by the FTA

There was no change to the day when you calculate the duration for photographs between the publication and the death of the author.

(US FREE TRADE AGREEMENT IMPLEMENTATION ACT 2004 SCHEDULE 9)

120 Subsection 33(2)

Omit "50 years", substitute "70 years".

121 Subsections 33(3) and (5)

Omit "the expiration of 50 years after the expiration", substitute "the end of 70 years after the end".

122 Subsection 34(1)