Copyright can be a highly valuable business asset. In order to protect this form of intellectual property, it is important to note upcoming changes to the Copyright Act 1968.
In Australia, the standard term or duration of copyright protection given to various types of copyright materials will change from 1 January 2019. This article will discuss the impact of this on different types of materials and the terms of copyright the new law gives them.
Materials with New Terms of Copyright Protection
Copyright materials which the new law will affect include:
- Literary, dramatic, musical, and artistic works
- Computer programs
- Sound recordings
- Cinematograph films
- Published editions
- Copyright material created or first published by international organisations
- Editions first published by international organisations, and
- Government copyright materials.
New Standard Terms of Protection
In general, the duration of protection for the main types of copyright materials is:
- 70 years after the author’s death for literary, dramatic, or musical works;
- 70 years after creation or 70 years after it was first made public (if done so within 50 years of making) for works with unknown authors and sound and film recordings; and
- 50 years after creation for Government copyright materials.
Important Things to Note
The new law will apply to copyright materials created from 1 January 2019 and onwards.
In addition, it is notable that the new law will now extend copyright protections to materials which have not been publicised. Indeed, this is a first for Australia. For significantly older unpublished materials however, these protections will expire before they even begin on 1 January 2019. This will generally be the case where:
- The material was created before 1 January 1955, or
- The author died prior to 1 January 1949.
The exact circumstances which lead to copyright expiration will vary based on the type of material. Indeed, it differs between engravings and sound recordings for example.
Where copyright in materials expire by 1 January 2019, the new law will not restore it. This means the material will become part of the ‘public domain’ and be free to use by anyone.
In order to avoid this, owners of copyright in older unpublished materials may consider making it public before 1 January 2019 to maintain copyright protection. Indeed, doing so can effectively grant the owner exclusive rights of use over the copyright materials, for a longer period of time. This may be useful where a business wishes to use the material commercially, or prevent others from doing so.
Example: An author creates a literary work which they do not publish. They later die, prior to the year of 1949. Consequently, copyright in this type of material would expire by 1 January 2019 if it remains unpublicised. However, if it was made public from between 1 January 1955 to 1 January 2019, the copyright would not expire in 2019. Therefore, the duration of copyright would be 70 years after it was first made public.
Materials are made public when they become available to members of the wider public. In this scenario, while the material is accessible by other people, copyright holders may still maintain certain rights of use over the work that is exclusive to them.
Methods of making materials public include:
- Public performance
- Providing public records of the work
- Public exhibition or hearing of the material, and
- Communication of the material to the public.
The new law will have a significant impact on copyright protections for a wide range of materials from 1 January 2019. Copyright materials created from 1 January 2019, in addition to existing non-publicised works, will have different durations of copyright protections attached to them.
Right holders of these materials should contemplate whether they need to act before 2019 to prolong their term of copyright. For further advice on copyright protection for your business, it is advisable to consult with a copyright lawyer.
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