Copyright Introduction

Australian copyright law was originally derived from British law. It was not until the current legislation was passed, the Copyright Act 1968 (Cth) that Australia started to find its own identify with respect to copyright.

In the UK, prior to formal copyright legislation being passed, copying restrictions were authorised by the Licensing of the Press Act 1662. The Stationers’ Company enforced the restrictions imposed by the Act. They were a guild of printers given the exclusive power to print and distribute literary works. During this time, there were concerns regarding censorship with respect to the content that was printed and distributed by the guild of printers. The guild had full control over what content was printed and made available to the public. The public protested these restrictions and eventually Parliament refused to renew the Licensing Act, which ended the Stationers' monopoly and press restrictions.

Over the next 10 years the Stationers repeatedly advocated bills to re-authorise the old licensing system, but Parliament declined to enact them. Faced with this failure, the Stationers decided to emphasise the benefits of licensing to authors rather than publishers, and the Stationers succeeded in getting Parliament to consider a new bill. This new bill became the Statute of Anne 1709.

State of Anne 1709 was passed in 1710. This was the first statute to regulate copyright through the government and courts, rather than through private parties. One of the foundations of this statute was the prescribed copyright term of 14 years, with a provision for renewal for a similar term, during which only the author (and the printers they chose to license their works) could publish the author's creations. Following this, the copyright in the works would expire, with the material falling into the public domain. The Statute of Anne remained in force until the Copyright Act 1842 replaced it. The statute was an influence on copyright law in several other nations, including the United States, and even in the 21st century is considered to support the utilitarian justification for copyright law.

In 1828, the UK enacted the Australian Court Act 1828 (UK) which in effect caused all the Acts (that were in force at the time) in the UK to be enforced within Australia. The UK copyright law was among these laws.

Throughout the early 1900’s Australia had two copyright acts, the Copyright Act 1905 (Cth), which was the first copyright statute and the Copyright Act 1912 (Cth), this was the second copyright statute which repealed all other related legislation and adopted the Copyright Act 1911 (UK).

In 1959 the Spicer Report was released which proposed significant changes to Australia’s copyright law. The purpose of these changes was to enable the ratification of the Brussels Act of the Berne Convention. The Spicer Report led to the enactment of the Copyright Act 1968 (Cth), which remains in force today. This Act has been updated a number of times to account for new purposes, development in international laws and trade agreements.

There have been continuous changes in the legislation as a result of changes to technology.

Below is a brief timeline of the developments of copyright law in Australia from the first types of copyright in the UK through to the nuanced aspects of copyright in today's society.

Year Development in the Law Outcome
1476 Caxton Press The printing press was established in England.
1557 Stationers Company A guild was given a monopoly over printing and distributing books. This was a royal decree.
1643 The Licensing Order The Ordinance for the Regulating of Printing also known as the Licensing Order of 1643 instituted pre-publication censorship upon Parliamentary England.
1709 The Statute of Anne The Statute of Anne was the first statute to regulate copyright (by the government and courts), as opposed to private parties.
1828 Australian Court Act 1828 (UK) The UK statues were received into Australian colonies.
1883 Ownership in copyright As a result of changes to copyright law to include photographs the question of who was the owner of the copyright in the photograph and under what circumstances became an issue for the court to decide. 1)
1886 The Berne Convention The Berne Convention for the Protection of Literary and Artistic Works is agreed, following a campaign by French writer Victor Hugo. The aim is to give creators the right to control and receive payment for their creative works on an international level.
1901 The Australian Constitution Australia became a nation.
1905 Copyright Act 1905 (Cth) The first Commonwealth copyright statute.
1912 Copyright Act 1912 (Cth) The second Commonwealth copyright statute which adopted the Copyright Act 1911 (UK).
1937 Limitations to rights over intangible property The High Court of Australia considered the case of Victoria Park Racing & Recreation Grounds Co Ltd v Taylor 2) The case considered property rights. One aspect of the case considered whether copyright law had been breached with respect to facts. It was held that, “[t]he law of copyright does not operate to give any person an exclusive right to state or to describe particular facts. A person cannot by first announcing that a man fell off a bus or that a particular horse won a race prevent other people from stating those facts.”3)
1956 Copyright Act 1956 (UK) This Act did not apply to Australia.
1968 Copyright Act 1968 (Cth) The British Copyright Act 1911 continued to apply in Australia until the Copyright Act 1968 (Cth) came into force on 1 May 1969.
1994 Trade Related Aspects of Intellectual Property Rights (TRIPS) The TRIPS agreement entered into force which prescribed minimum standards for intellectual property, including copyright law.
2004 United States Free Trade Agreement (AUSFTA) Under the IP terms of this Agreement, Australia agreed to extend its copyright term from the life of the author plus 50 years to the life of the author plus 70 years.
2017 The Copyright (Disabilities and Other Measures) Act 2017 This Act was passed on 15 June 2017. One of the primary aims of the Act was to align Australia'a copyright law with the Marrakech Treaty.

There are six basic issues that must be considered in approaching copyright and related rights.

  1. Subsistence - This asks whether the the subject matter is protected by copyright?
  2. Ownership - Who owns the copyright?
  3. Infringement - Have any of the exclusive rights of the copyright owner been infringed?
  4. Defences - Do any defences apply to the alleged infringement?
  5. Remedies - What remedies are available?
  6. Related Rights - This asks whether there are any related rights associated with the copyright. For example moral rights, anti-circumvention and designs.

Each of these issues will be discussed in detail in the following chapters.

Nottage v Jackson (1883) 11 QBD 627
1937) 58 CLR 479
Victoria Park Racing & Recreation Grounds Co Ltd v Taylor ((1937) 58 CLR 479, [479]
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