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About copyright

If a work is still in copyright, you may be infringing the owner’s rights if you use their work without first obtaining permission.

Copyright is a legal right that gives copyright owners the right to control certain activities with their works. These activities can include:

  • copying
  • publishing in print or online
  • performing
  • adapting.

If a work is still in copyright, you may be infringing the owner’s rights if you use their work without first obtaining permission.

The National and State Libraries Australasia (NSLA) position statement on copyright for clients includes information on Commonwealth copyright, duration of copyright, fair dealing and orphan works.


Who owns copyright?

The Library does not own the copyright of most material in its collections. Copyright ownership is distinct from physical ownership. For example, even though the Library holds a painting in the collection, the Library does not necessarily have the right to provide you with a copy of it. Permission to copy and use material needs to be obtained from the copyright owner. The Library can, in some cases, provide information to help you contact a copyright owner.

The default rule in the Copyright Act 1968 (Cth) is that copyright in a work is owned by its creator or maker. However, this basic position can be changed in various ways:

  • copyright owners can transfer their copyright, where an author assigns copyright to a publisher
  • if a creator made the work as part of their job, the employer will generally own copyright
  • for some commissioned items, the commissioner is deemed to be the copyright owner
  • if a copyright owner dies, their copyright forms part of their estate and can therefore be bequeathed by will
  • the relevant government owns copyright in works made by, or under the direction or control of, an Australian federal or state government agency
  • it is possible for more than one copyright to exist in a single item. For example, in a music CD, the composer may own copyright in the music, the lyricist in the words, a photographer in a photo used on the cover, and a production company in the way the music was recorded
  • it is also possible to have more than one owner of a single copyright, for instance when two or more individuals act as co-authors of a book.

More information ownership of copyright is available from the Australian Copyright Council.


How long does copyright last?

Copyright protection in Australia generally lasts for the life of the creator, plus 70 years. There are factors which can change this. Copyright duration can depend on the type of material and the date it was published, performed or exhibited.

Calculating the copyright term for a given work can be complicated because copyright legislation has changed over time. You may need to look at previous copyright statutes to work out whether older material is still protected by copyright.

Amendments to the Copyright Act 1968 (Cth), which came into force on 1 January 2019, removed copyright in perpetuity for unpublished material. This harmonised terms for published and unpublished material.

More detailed information about the duration of copyright is available from:

Once copyright of an item expires, copyright-related restrictions on its use cease. This is sometimes referred to as being in the public domain. Some general examples of where this applies are:

  • a book published during the author’s life, where the author died before 1955
  • photographs taken before 1955
  • sound recordings made before 1955 and never made public.

The Library may restrict use of material in the public domain because it is fragile, culturally sensitive, or subject to conditions in a donor rights agreement.


Why is there a copyright system?

There are many explanations for why there is a copyright system, including that it:

  • provides an important incentive for the creation and distribution of intellectual and creative works
  • rewards authors, artists and creators for the fruits of their labours.

What types of works does copyright cover?

In Australia, copyright applies to both published and unpublished works. Protection is automatic provided certain basic requirements are met. There is no copyright registration process and an individual does not need to claim copyright by including the copyright symbol and their name on a work (such as © Author Name 2010). Copyright is not dependent on aesthetic or literary merit and can protect materials that are utilitarian, short and/or mundane.

Copyright applies to many different types of works, including:

  • architectural plans
  • artworks
  • books, newspapers and periodicals
  • broadcasts (both sound and television)
  • choreographic shows
  • compilations and databases
  • computer games
  • design drawings and plans
  • diaries and letters
  • films
  • manuscripts
  • maps
  • musical scores
  • photographs
  • plays
  • published editions
  • screenplays and scripts
  • software
  • song lyrics
  • sound recordings
  • Websites.

What are moral rights?

Australian copyright law sets out a separate and additional set of rights called moral rights.

Moral rights give certain creators and performers the right:

  • to have their authorship or performership attributed to them;
  • not to have their work falsely attributed to someone else; and
  • not to have their work treated in a derogatory way.

You should consider moral rights when re-using and altering works. For example, when you are cropping or colouring an image for part of a new work. You should ensure that attributions are clear and reasonably prominent.

Moral rights generally last until the copyright in the work expires. Moral rights cannot be transferred or waived, although creators can provide written consents to acts that would otherwise infringe their moral rights.

More information on moral rights is available from the Australian Copyright Council.


Which copyright law applies?

In Australia, copyright law, including all amendments, is set out in the Copyright Act 1968 (Cth).

Australian copyright law applies to any copying done in Australia, even if the owner of copyright in the work you are copying is a citizen of another country. This is because there are reciprocal arrangements between countries which mean that copyright in foreign works is also recognised in Australia (and vice versa).

If you are not located in Australia and you are copying digitised content from a Library website, you must follow the copyright law of the country in which you reside.


Key exceptions in the Copyright Act 1968 (Cth)

The Copyright Act 1968 (Cth) contains many exceptions to infringement.

This table identifies some that are particularly relevant to activities of library patrons (column 1). If one of these exceptions applies to your proposed use, you can undertake that use without seeking the permission of the copyright owner. You must keep your activity within the scope of the exception.

For example, exceptions are often limited by the type of material to which they apply (column 2) and have other requirements that you must follow (column 3). Under some exceptions, the collection item must be copied by the Library on your behalf – you cannot copy it yourself (column 4). In some cases, more than one exception may apply to the same conduct.

While some exceptions are defined using very specific language, others are written more broadly – in particular, fair dealing. If you have any questions about whether your proposed use falls within an exception, it may be wise to seek legal advice.

Even if copying falls under an exception, you may need to obtain the Library’s permission to make or obtain a copy of certain material. This may be due to preservation concerns, donor conditions or concerns about private or sensitive information. Similarly, for fragile material, the Library may insist on assisting you with copying or making any reproductions on your behalf.

Information given by the Library does not amount to legal advice. If in doubt, seek legal advice.

Purpose of use: Research or study

Exception

Material covered by exceptions

Application of exception

Who can undertake the copying

Fair dealing generally: sections 40 & 103C

works (literary, dramatic, musical and artistic works) and audiovisual material (sound recordings, films and broadcasts)

The dealing must be for research or study purposes and be fair.

Relevant factors in determining whether the act is a fair dealing include:

  • the purpose and character of the dealing
  • the nature of the work being dealt with
  • whether that work is commercially available
  • the market effect of your dealing
  • the importance and amount of the part copied.

Some specific dealings are taken to be fair dealings, and you do not need to apply these factors — see next row.

the patron*

Fair dealing: deemed fair dealings under subsections 40(3)–(7).

articles in periodical publications and published works

Articles: the reproduction of all or part of an article from a periodical publication is taken to be a fair dealing. This exception does not apply if another article in the publication is also reproduced for the purpose of different research or study.

Published editions: it is a fair dealing to reproduce up to a ‘reasonable portion’, which is defined as:

  • For a literary, dramatic or musical work published in hard copy form: 10% of the number of pages in the edition OR a single chapter.
  • For a literary or dramatic work published in electronic form (but not a computer program or an electronic compilation): 10% of the number of words OR a single chapter.

If you subsequently want to make a further reproduction from the same published work, you cannot invoke this exception again.

the patron*

Sections 49 and 50

articles in periodical publications and published works

This exception allows the Library to reproduce articles and published works on the request of patrons.

  • You must follow the procedures for making the request. A signed declaration may be required.
  • The Library will assess your request by reference to the requirements in the Copyright Act, and let you know whether they are satisfied.

the Library

Subsection 51(1) & section 110A

unpublished works, sound recordings and films

The exception only applies to material:

  • that has not been published;
  • that is kept in a collection that is open for public viewing or listening; and
  • at least 50 years has passed since the time the author died (for works) or the recording or film was made (for sound recordings and films).

the patron or the Library

Subsection 51(2)

unpublished theses and similar works

You must satisfy the Library that you require the reproduction for the purposes of research or study.

the Library

Purpose of use: Criticism or review

Exception

Material covered by exceptions

Application of exception

Who can undertake the copying

Fair dealing: section 41

works (literary, dramatic, musical and artistic works)

The dealing must be for criticism or review purposes and be fair. In addition:

  • The criticism or review must be of that work or another work.
  • You must include an acknowledgement of the work: the title or a description of the work should be given and (unless the work is anonymous, pseudonymous, or the author has directed that his or her name should not be used) the author should be identified.

the patron*

Fair dealing: section 103A

audiovisual material (sound recordings, films and broadcasts)

The dealing must be for criticism or review purposes and be fair. In addition:

  • the criticism or review must be of that audiovisual item, or another work or audiovisual item
  • you must include a sufficient acknowledgment of the audiovisual item.

the patron*

Purpose of use: Parody or satire

Exception

Material covered by exceptions

Application of exception

Who can undertake the copying

Fair dealing: sections 41A and 103AA

works (literary, dramatic, musical and artistic works) and audiovisual material (sound recordings, films and broadcasts)

The dealing must be for the purpose of parody or satire and be fair.

the patron*

Purpose of use: News reporting

Exception

Material covered by exceptions

Application of exception

Who can undertake the copying

Fair dealing: sections 42 and 103B

works (literary, dramatic, musical and artistic works) and audiovisual material (sound recordings, films and broadcasts)

The dealing must be fair and for the purpose of, or associated with, reporting the news in:

  • a newspaper, magazine or similar periodical; or
  • a communication or in a film.

If the news is reported in a newspaper or magazine or similar, a sufficient acknowledgement must be made.

the patron*

Purpose of use: Publication

Exception

Material covered by exceptions

Application of exception

Who can undertake the copying

Sections 51, 52 and 110A

unpublished works to which section 51(1) applies.

The procedures in sections 51 and 110A can also be used where the patron requires the reproduction with a view to publication.

There are procedures in section 52 that allow material reproduced under subsection 51(1) to be published in a new work without the permission of the copyright owner — but these must be strictly followed.

the patron or the Library

Purpose of use: Assisting people with a disability

Exception

Material covered by exceptions

Application of exception

Who can undertake the copying

Section 113E

all copyright works

Providing access to in-copyright material for people with disabilities which would prevent them from using or enjoying the material is fair dealing. The following factors must be considered:

  • the nature of the work being dealt with;
  • the market effect of your dealing; and
  • the importance and amount of the part copied.

the patron or the Library

 

Section 113F

all copyright works

An organisation can provide access to in-copyright material to people with disabilities. It is fair dealing where the material:

  • is in a format required by the person because of a disability; and
  • Is not commercially available

the patron or the Library

 

Activities not covered by other exceptions

Exception

Material covered by exceptions

Application of exception

Who can undertake the copying

Section 200AB

all copyright works

Section 200AB applies to uses performed for the purposes of maintaining and operating the Library. This may include services provided to patrons.

Any reliance on section 200AB will be assessed by, and will be at the discretion of, the Library.

the Library

There is uncertainty in Australia regarding whether the Library can copy on the patron’s behalf under fair dealing.

More information about fair dealing is available from the Australian Copyright Council.


Copyright glossary

Original works

Examples from the Library’s collection include:

  • architectural plans
  • art works
  • diaries, letters and other manuscripts
  • hand-drawn maps
  • unpublished music
  • photographs
  • oral history sound recordings
  • excludes rare books

Published works

Works of which reproductions have been supplied to the public, such as:

  • books
  • newspapers
  • magazines
  • most maps
  • commercially-made music CDs
  • television broadcasts

Unpublished works

Works of which reproductions have not been supplied to the public by the copyright holder, such as:

  • architectural plans
  • artworks
  • diaries, letters and other manuscripts
  • hand-drawn maps and music scores
  • oral history sound recordings
  • photographs.

Made public

A work will be made public if it has been:

  • published (i.e. supplied or offered for sale to the public)
  • performed in public
  • communicated to the public (i.e. made available online or broadcast)
  • for artistic works, films and sounds recordings only — exhibited to the public

Useful links

Law

  • You can view the current version of the Copyright Act 1968 (Cth) on the Federal Register of Legislation website. The current version of the Copyright Act includes all changes made by amending legislation, such as the Copyright Amendment (Moral Rights) Act 2000, the Copyright Amendment (Digital Agenda) Act 2000, the relevant parts of the US Free Trade Agreement Implementation Act 2004, the Copyright Amendment Act 2006 and the Copyright Amendment (Disability Access and Other Measures) Act 2017.
  • For an overview of the Copyright Act see A short guide to copyright issued by the Department of Communications and the Arts.
  • The Australian Copyright Council has an excellent website that provides a range of information sheets. Topics include:
    • Fair dealing — includes advice on exceptions which allow copying, under certain conditions, for research, study, criticism, review, parody, satire, reporting news or legal advice.
    • Research or study — gives advice on the exception which allows copying, under certain conditions, for research or study, including the ‘10%’ rule and what is considered ‘fair’.
    • Quotes and extracts: copyright obligations — provides advice on using quotes and extracts for purposes ranging from research or study to publication.
    • Duration of Copyright
    • Artists — includes a list of formats which fall within the Copyright Act’s ‘artistic works’ category.

Collecting societies and other ways to find copyright owners

Organisations with expertise in copyright and other intellectual property rights