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Duration of Copyright

1. Extension of the copyright term
2. Current Provisions
   1. Copyright in Unpublished and Orphan Works
3. Finding the Balance
4. The Future: Limited Scope for Change Under International Law

Unlike other IP rights, copyright protection lasts for an exceptionally long period. Once a work comes into existence, copyright protection begins automatically. For most types of works, copyright lasts throughout the lifetime of the creator plus an additional 70 years.

For more information on the new duration provisions see the Commonwealth guide to copyright duration (PDF).¹

Extension of the copyright term

The topic of duration of copyright is contentious in Australia. Prior to 2005 the duration of protection for literary, dramatic, musical and artistic works was life of the author plus 50 years. In 2005 this term was extended by 20 years due to the Australia-United States Free Trade Agreement, (AUSFTA) which required Australia to align its copyright law with that of the United States of America. The extension provisions are retrospective, which means that the extended duration applies to all works, not just works that were created after the extension came into force. Similarly, the duration of protection for photographs was previously 50 years, but also extended in line will all other artistic works due to the AUSFTA. There were special provisions made to ensure that any persons who exploited photographs prior to 16 August 2004 (the date to which the US Free Trade Agreement Implementation Act 2004 (Cth) came into existence) under the assumption that the works had entered the public domain were not found in breach of copyright. Since the duration terms where extended, there has been ongoing debate in Australia regarding what the appropriate duration for copyright protection might be.

Current Provisions

Since the requirements of the AUSFTA were introduced, the duration of copyright for published literary, dramatic, musical, and artistic works is 70 years after the death of the author.² Works that are classified as sound recordings and cinematograph films are protected by copyright for 70 years from the year of publication.³ The remainder of the copyright duration provisions are for terms less than 70 years. For Crown copyright works, the duration is 50 years from the date of creation. Similarly, copyright protection in broadcasts lasts for 50 years from the year the broadcast was first made.⁴ Lastly, the duration of copyright protection in published editions is 25 years from year of first publication.⁵

Copyright in Unpublished and Orphan Works

As of January 1, 2019 copyright in unpublished literary, dramatic, and musical works (excluding computer programs), or works where the author is anonymous or using a pseudonymous was amended. Works that have not been made public or works where the identity of the author is not generally known (orphan works), are not protected by perpetual copyright. These works now have a fixed copyright term.²

Unpublished Works

Works that have not been made public will be protected by copyright for the same period as works that have been made public. Works that have not been made public will generally be protected for 70 years from the year in which the author dies. However, if a dramatic, musical or literary work (other than a computer program), or an engraving, is first made public before 1 January 2019 and the author died before the work was first made public, it will be protected by copyright for 70 years after the year in which the work was first made public. Similarly, if a dramatic, musical or literary work (other than a computer program), or an engraving, was not made public before 1 January 2019 and the author died before 1 January 1948, copyright will have expired.

The copyright term for films and sound recordings, and copyright material owned by international organisations that have not been made public was also amended. In addition, the copyright term for works, sound recordings and films owned by a government were standardised. Unpublished material is no longer in perpetual copyright.³

For copyright material first made public before 1 January 2019 the copyright continues to subsist until 70 years after the calendar year in which the copyright material was first made public if the material was first made public before 1 January 2019.

For copyright material never made public, and material first made public on or after 1 January 2019 the new duration provisions are:

• If the subject matter other than works is first made public before the end of 50 years after the calendar year in which the material was made, the copyright continues to subsist until 70 years after the calendar year in which the material was first made public.⁶

• If the subject matter other than works is not made public before the end of 50 years after the calendar year in which the material was made, copyright subsists for 70 years after the calendar year in which the copyright material was made.⁶

Orphan Works

If the identity of the author of a work is generally unknown and the work is made public on or after 1 January 2019:

• the work will be protected by copyright for 70 years after the year in which the work was first made public provided the work is first made public before the end of 50 years after the year in which the work is made;
• if the work is not first made public before the end of 50 years after the year in which the work was made, the work will be protected by copyright for 70 years after the year in which the work is made.

However, if the work is first made public before 1 January 2019 and the identity of the author is not generally known before the end of 70 years after the year in which the work was first made public, the copyright will expire at the end of that 70 year period. If the work is never made public, the work will be protected by copyright for 70 years after the year in which the work is made.

Finding the Balance

Governments, academics and advocacy groups both domestically and internationally have explored what the most appropriate balance may be with respect to the duration of copyright. Some copyright works continue to be exploited for many years after their creation. But there is a great deal of material that is protected for a long time after it ceases to be economically valuable. Many commerical productions have a shelf life of only a few years. Because copyright applies automatically, copyright also protects a very large amount of material that was never intended to be commercially licensed or exploited – like letters and emails, for example. It is difficult to develop a set of simple rules that optimally protect the interests of creators and producers without imposing undue burdens on the public interest in accessing knowledge and culture, or the ability of future creators to learn from, adapt, and rework existing materials.

An economic study of copyright found that a term of approximately 25 years was likely to be appropriate to provide rights holders the opportunity to “generate revenue comparable to what they would receive in perpetuity…without imposing onerous costs on consumers”. The suggested term of 25 years was considered to be “sufficient to incentivise creative effort” in most cases.⁷ Another study was undertaken into copyright protection using data from the US copyright register to measured the costs that is paid by the public when copyright protection is increased.⁸ This study suggested a copyright term of approximately 15 years after the creation of the work was sufficient and factored in the benefits of copyright for rights holders and costs of the system on the public.

Most recently, the Australian Productivity Commission undertook an inquiry into Australia’s Intellectual Property Arrangements. This inquiry provided an overview of the current copyright protection provisions and noted that, “[w]hile a single optimal copyright term is arguably elusive, it is likely to be considerably less than 70 years after death”.⁹

Whilst the studies are inconclusive, some general concerns have been raised with respect to the effect overly long duration of copyright protection may have on the copyright system. These concerns include the reduction in community welfare due to access restrictions on works that are under copyright protection and the problem of orphan works. The amendments which came into force in January 2019 begin to address some of these concerns regarding duration, especially with respect to unpublished and orphan works.

The Future: Limited Scope for Change Under International Law

These studies and inquiries into the duration of copyright indicate that the current provisions in Australia may not be optimal. Despite this, Australia does not have the unilateral ability to alter the duration provisions. As such, the debates regarding the optimal balance of copyright protection in Australia are continuous but in general, are currently a moot point.

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