Copyright expiry in Australia depends on when a work was created, and on the type of work. Under the current law, copyright usually expires 70 years after the death of the author, or for anonymous works, 70 years from the date of publication. Crown copyright expires 50 years after publication. The law has evolved over the years, and previously photographs were treated differently from other works. Anonymous works and photographs created before 1955 are no longer under copyright. For non-photographic works created before 1955, where the author is known, the copyright expires 50 years after the death of the author.

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Any photo, published or unpublished, anonymous or attributed, taken before 1 January 1955 is out of copyright and in the public domain.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]
For material created or published since 1 January 2019, the rules are simpler.

Under the old pre-FTA system, all 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".

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.[3]

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 government owned photographs: copyright expires 50 years from the end of the year they were taken. Thus government-owned images made before 1973 are out of copyright.

In 2015, ALIA announced a campaign called "Cooking for Copyright", highlighting the perpetual copyright status of unpublished works such as diaries, letters, company records and handwritten recipes.[4] Recipes including Captain Cook's carrot marmalade[5] were published on FAIR's website, breaking the existing law.[6] In June 2017, a law was passed which included a 'life of the author plus 70 years' copyright term for unpublished works,[7] which came into effect on 1 January 2019.[8]

Works held in Libraries

The National Library Picture Catalogue[9] 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 (when copied within Australia). Once something is in the public domain, the copyright belongs to everyone. An argument given by the British Library online[10] 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"[11] 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"[12]

Foreign works

Under lex loci protectionis, a court in a particular country will apply its own copyright laws when determining expiry dates. Under Part VIII, Division 1, of Australian copyright law, foreign works, foreign citizens, and foreign residents are treated as though Australian, provided the foreign country is party to a relevant international agreement and gives "adequate protection" to owners of copyright. Australia does not apply the rule of the shorter term, so the expiry date of a work in its country of origin has no effect on its status in Australia.

  • 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.[13]

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."

See also

References

  1. ↑ Photographers & Copyright information sheet No. G011 p. 1. Retrieved 5 December 2011.
  2. ↑ Photographers & Copyright information sheet No. G011 p. 4. Retrieved 5 December 2011.
  3. ↑ See the tables of the duration of copyright.] January 2019.
  4. ↑ "Librarians cook up vintage recipes in bid to change copyright laws". ABC News. 28 July 2015.
  5. ↑ Martin, Peter (8 August 2015). "Indefinite copyright is a joke - the recipe for carrot marmalade proves it". The Sydney Morning Herald. Retrieved 3 January 2018.
  6. ↑ "Report: Cooking for Copyright" (PDF). Retrieved 3 January 2018.
  7. ↑ "Cooking for Copyright! – the Second Course – The Copyright Office Blog". blogs.unimelb.edu.au. Retrieved 9 January 2018.
  8. ↑ "2019 Australia's Year of the Public Domain". Australian Libraries copyright committee. 27 December 2018.
  9. ↑ "Pictures | National Library of Australia". Nla.gov.au. Retrieved 27 December 2011.
  10. ↑ Archived 30 October 2005 at the Wayback Machine
  11. ↑ "Rights and the Pictures Collection". National Library of Australia. Retrieved 28 January 2014.
  12. ↑ Archived 8 November 2005 at the Wayback Machine
  13. ↑ "Copyright Term and the Public Domain in the United States". cornell.edu. Archived from the original on 4 July 2012. Retrieved 27 December 2011.
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