Commons:Copyright rules by territory/Australia

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Copyright rules: Australia
Shortcut: COM:AUSTRALIA
Flag of Australia
Map of Australia
Durations
Standard Life + 70 years
Anonymous Publish + 70 years
Government Creation + 50 years
Other
Freedom of panorama For 3D works and "works of artistic craftsmanship"
ISO 3166-1 alpha-3 AUS
Treaties
Berne convention 14 April 1928
WTO member 1 January 1995
URAA restoration date‌* 1 January 1996
WIPO treaty 26 July 2007
*‌A work is usually protected in the US if it is a type of work copyrightable in the US, published after 31 December 1928 and protected in the country of origin on the URAA date.

This page provides an overview of copyright rules of Australia relevant to uploading works into Wikimedia Commons. Since the Wikimedia Foundation's servers are located in the United States, any work originating in Australia must be in the public domain, or available under a free licence, in both Australia and the United States before it can be uploaded to Wikimedia Commons. If there is any doubt about the copyright status of a work created in Australia, refer to the relevant laws and to Australian Government copyright policy guidance.

Governing laws

Australia has been a member of the Berne Convention since 14 April 1928, the World Trade Organization since 1 January 1995, and the WIPO Copyright Treaty since 26 July 2007.[1] As of 2018, the World Intellectual Property Organization (WIPO), an agency of the United Nations, listed the Copyright Act 1968 (Cth) (consolidated as of 22 December 2017) as the main intellectual property law enacted by the federal legislature of Australia.[1] WIPO holds in their WIPO Lex database the text of this law[2] and the text of the individual acts that have modified the 1968 act.[1]

Non-government works

The Copyright Act 1968 was amended as of 1 January 2005 and further amended in February 2008. Prior to these amendments the time limit was 50 years. The amendments were not retroactive; copyrights that had expired were not revived.

The act (consolidated as of 22 December 2017) has the following provisions:

  • Australian copyright is applied to works published first in Australia or whose original author is/was an Australian citizen, Australian resident or person under protection of the Australian government.
  • Subject to this section, copyright that subsists in a literary, dramatic, musical or artistic work by virtue of this Part continues to subsist until the end of 70 years after the end of the calendar year in which the author of the work died.[1968–2017 Sec.33(2)]
  • For posthumous works, copyright subsists until the end of 70 years after the end of the calendar year in which the work is first published, performed in public, or broadcast, or records of the work are first offered or exposed for sale to the public, whichever is the earliest of those events to happen.[1968–2017 Sec.33(3)]
  • For anonymous or pseudonymous works, the copyright expires 70 years after the first publication of the work.[1968–2017 Sec.34]

As a consequence, the following apply:

  • All published works whose author died before 1 January 1955 are in the public domain.
  • Moreover, since works that went out of copyright before the change of the law in 2005 did not regain copyright, all published works whose author died before 1 January 1955 are in the public domain, since they went out of copyright before the new law came into effect. Copyright is lost at the start of the next year; therefore, works of authors who died in 1955 will not be out of copyright until 2026.
  • All anonymous or pseudonymous works published before 1 January 1955 are in the public domain.
  • Unpublished works are not in the public domain.
  • Photographs (published or unpublished) taken before 1 January 1955 are in the public domain.

Government works

Shortcut

See also: Commons:Government works


Under the Copyright Act 1968 (consolidated as of 22 December 2017):

  • The Commonwealth or a State is the owner of the copyright in an original literary, dramatic, musical or artistic work made by, or under the direction or control of, the Commonwealth or the State, as the case may be.[1968–2017 Sec.176(2)]
  • Copyright in a literary, dramatic or musical work of which the Commonwealth or a State is the owner ... (a) where the work is unpublished—continues to subsist so long as the work remains unpublished; and (b) where the work is published—subsists, or, if copyright in the work subsisted immediately before its first publication, continues to subsist, until the expiration of 50 years after the expiration of the calendar year in which the work was first published.[1968–2017 Sec.180(1)]

Copyright tags

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See also: Commons:Copyright tags


  • {{PD-Australia}} – for Australian photographs published 70 years after the death of the creator, or photographs taken prior to 1955
  • {{PD-Australia-currency}} – for coins designed before 1 May 1969
  • {{PD-AustraliaGov}} – for government works whose copyright has expired.
  • {{DFAT}} - for works from the Department of Foreign Affairs and Trade

Currency

Shortcut

See also: Commons:Currency


 Not OK for coins or banknotes designed on or after 1 May 1969.
OK for coins or banknotes designed before 1 May 1969, but under the following conditions: Derivative works of images of banknotes are expressly forbidden. Low resolution images of banknotes are allowed for editorial or educational purposes, as long as only one side of a bank note is featured. See website for details of exact size requirements for images.

Designs from prior to 1 May 1969 are in the public domain, and should use the tag {{PD-Australia-currency}}.

Freedom of panorama

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See also: Commons:Freedom of panorama

Freedom of Panorama is dealt with in the Australian Copyright Act, sections 65–68, and is based on the laws of the United Kingdom.

"Artistic work" is defined under section 10 of the Copyright Act 1968 as:

(a) a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not;
(b) a building or a model of a building, whether the building or model is of artistic quality or not; or
(c) a work of artistic craftsmanship whether or not mentioned in paragraph (a) or (b);

The main concern stems from what is a work of "artistic craftmanship", which the statutory law does not clearly define, but was defined in case law under Burge v Swarbrick [3] The High Court ruled that whether a work has that quality depends on whether it is a work of craftsmanship the artistic form of expression of which is sufficiently "unconstrained by functional considerations".

In the Australian Federal Law Review, Justine Pila wrote an article in light of of the High Court ruling in Burgess that:

"I suggest the requirement for artistic quality is simply a requirement for a [work of artistic craftmanship] 'not imaginary, unreal or apparent only' ... As those cases reflect, even conceived in historical terms, WACs are not exceptional works but rather paradigmatic works, contrary to the orthodox view above. The fact that they are functional too does not lessen their need for artistic quality".[4]

Furthermore, she stated that:

"what constitutes a work of artistic craftsmanship is the same as what constitutes other works — their properties of form and the history of their individual production." [4]

Several users claim that this implies two-dimensional flat arts like paintings and street art are considered as "works of artistic craftsmanship" in Australia, but others doubt about this interpretation and it has not been completely accepted by Wikimedia Commons community. Moreover, according to an information sheet of the Australian Copyright Council concerning street art (dated November 2019), the exception provided by Section 65 "applies only to sculptures and works of artistic craftsmanship, not to other artistic works such as murals and graffiti. Therefore, the copyright in a mural or graffiti may be infringed by taking a photograph of it." It adds that licensing permission from the copyright holder is needed, for uses of Australian street art "to feature on a website; to photograph, particularly for commercial purposes (e.g. to sell as postcards or prints); to use as the location of a film shoot; or to publish in a book or magazine."[5]

Stamps

See also: Commons:Stamps

Australia Post claims copyright ownership of Australian stamps for 50 years from publication (http://www.caslon.com.au/ipguide24.htm). Stamps published before 1 January 1974 can be tagged with {{PD-Australia}}.

Threshold of originality

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See also: Commons:Threshold of originality


 Not OK for most logos. The level of originality required for copyright protection in Australia is very low. Images showing the en:Australian Aboriginal Flag were consistently deleted from Commons as an Australian court has ruled that the flag is copyrighted.[6] See the discussions in Category:Australian Aboriginal flag related deletion requests.

  • The Australian Aboriginal Flag is allowed on Commons only because the Australian government has purchased the copyright from the original author, retroactively applying laws that place it in public domain in its country of origin
    The Australian Aboriginal Flag is allowed on Commons only because the Australian government has purchased the copyright from the original author, retroactively applying laws that place it in public domain in its country of origin

See also

Citations

  1. ↑ a b c Australia Copyright and Related Rights (Neighboring Rights). WIPO: World Intellectual Property Organization (2018). Retrieved on 2018-11-04.
  2. ↑ Copyright Act 1968 (consolidated as of December 22, 2017). Australia (2017). Retrieved on 2018-11-04.
  3. ↑ (2007) 232 CLR 336 ('Burge')
  4. ↑ a b Pila, Justine (2008). "Works of Artistic Craftsmanship in the High Court of Australia: the exception as paradigm copyright Work". Federal Law Review 36 (3): 363–379. DOI:10.22145/flr.36.3.4. ISSN 0067205X.
  5. ↑ Street Art & Copyright. Australian Copyright Council.
  6. ↑ Harold Joseph Thomas v David George Brown & James Morrison Vallely Tennant [1997] FCA 215. Federal Court of Australia (9 April 1997).
Caution: The above description may be inaccurate, incomplete and/or out of date, so must be treated with caution. Before you upload a file to Wikimedia Commons you should ensure it may be used freely. See also: Commons:General disclaimer
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