Duration of Copyright

The topic of duration in copyright law 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, 1) 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.

The following video provides a brief overview of the copyright duration, also know as the copyright term, in Australia for works and subjects matter other than works.

Video overview by Kylie Pappalardo on Copyright Duration.

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published literary, dramatic, musical, and artistic works is 70 years after the death of the author. 2) Similarly, for unpublished literary, dramatic, and musical works (excluding computer programs), or works where the author is anonymous or using a pseudonymous, the duration is 70 years after first publication of the work. 3) The exemption to this provision is instances where the author of the work becomes known during the course of copyright protection. The duration would then revert to life of the author plus 70 years.

Works that are classified as sound recordings and cinematograph films are protected by copyright for 70 years from the year of publication. 4) 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. 5) Lastly, the duration of copyright protection in published editions is 25 years from year of first publication. 6)

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.

An economic study of copyright found that a term of approximately 25 years was appropriate to provide rights holders the opportunity to ‘generate revenue comparable to what they would receive in perpetuity…without imposing onerous costs on consumers’. 7) The suggested term of 25 years was considered to be ‘sufficient to incentivise creative effort’. 8)

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. 9) 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, ‘While a single optimal copyright term is arguably elusive, it is likely to be considerably less than 70 years after death’. 10)

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 include the reduction in community welfare due to access restrictions on works that are under copyright protection and the problem of orphan works. Orphan works are works where the author is unknown which prevents the works from being used by the public, libraries or achieves.

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.


1)
AUSFTA
2)
s 33 the Copyright Act 1968 Cth
3)
s 34 Copyright Act 1968 Cth
4)
ss 93 and 94 the Copyright Act 1968 Cth
5)
s 95 Copyright Act 1968 Cth
6)
s 96 Copyright Act 1968 Cth
7) , 8)
Landes, W. and Posner, R. 2002, Indefinitely Renewable Copyright, John M Olin Law & Economics Working Paper No 154, University of Chicago, Chicago
9)
Pollock, R. 2007, Forever Minus a Day? Some Theory and Empirics of Optimal Copyright, 24 September, MPRA Paper No. 5024, Munich Personal Research Papers in Economics Archive, Munich
10)
Australian Productivity Commission, Inquiry Report, Intellectual Property Arrangements No. 78, 23 September 2016
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