Duration of copyright

The duration of copyright protection for literary, dramatic, musical and artistic works depends on a number of factors, including:

• if the author of the work is known or unknown
• whether the work has ever been made public, and
• if it has been made public, when it was made public.

Copyright duration for subject matter other than works depends on the type of material.

The copyright duration for Crown copyright material (i.e. any original works, sound recordings or films made by the State, made under the direction or control of the State or first published in Australia by the State) is 50 years after they were created (year made plus 50 years).

A work is said to have been made public if it, or an adaptation of it, has been:

• published
• performed in public
• broadcast
• communicated to the public such as by making it available online
• if copies have been sold or offered for sale.

For artistic works, if the work has been exhibited in public or it was included in a film and the film has been seen in public it has also been made public. For buildings, it has been made public if it has been constructed.

Importantly, the acts mentioned above must have been done by the copyright owner themselves or the act must have been authorised by them. Actions done by other parties without permission do not count – even if those acts were legal under an exception.

However, when you are dealing with a manuscript or original copy of, say, a letter or diary, it might not always be immediately clear whether it, or a substantial part of it, has been included in a book somewhere, or posted online by someone else. Even if it has, it won’t always been clear whether this has been done with the permission of the copyright owner. In these circumstances it is important to remember that you are not required to prove a negative; you do not have to show that the work has definitely never been made available to the public;, you just have to look for evidence that it has. If, after a reasonable search (similar to a search for an author’s identity) you cannot find any evidence to the contrary, it is probably safe to assume it hasn’t been made public for the purpose of copyright duration.

Under the Copyright Act if the identity of an author of a work can be ascertained by reasonable enquiry, then the identity of the author is taken to be generally known. The flipside of this is that, if at any time before the end of 70 years after the work was first made public, the identity of the author cannot be ascertained by reasonable enquiry then the identity of an author is taken to not be generally known, and the material can be considered an orphan work.

Determining where along the spectrum from ‘generally known’ to ‘not generally known’ an author sits can be complex. Works with famous or well documented authors will likely be easier to identify. It may be more difficult but not impossible to identify the author of anonymous or pseudonymous works. Common names, initials and other things may also hamper your search. However, many situations may result in you having some but not all information; you may have a name but no other details or you may know which city they lived in or you may know their address but not when they died.

The Copyright Act does not provided specific guidance on this issue, and in the absence of any court decisions (which are not likely to happen quickly) it is likely to be up to the cultural sector to determine its own guidelines on this issue. As a starting point, two good rules of thumb are:

• a name alone, without any other information, is probably not enough for the author’s identity to be known
• a name, address and date on which is the work is produced almost certainly is.

All other cases will fall somewhere on a spectrum between these two points.

The question therefore arises as to how much time should be spent trying to find additional details about the author. The next section looks at how to conduct a reasonably diligent search.

As noted in the section above, to determine if a work is orphaned the identity of the author of a work needs to be ascertainable through what the Copyright Act calls a reasonable enquiry – but in the libraries and archives sector you are more likely to hear it expressed as ‘a reasonably diligent search.’ Importantly, ‘reasonable enquiry’ is not defined in the Act. This begs the question of how much time should be spent trying to find additional details about the author.

We can’t answer that for you. But, it is worth noting that the Act does make it clear that only ‘reasonable inquiries’ are required. What a reasonably diligent search looks like will differ depending on the situation. For example, the following factors may come into play:

• Time and effort – This could range from a few minutes to a few hours for each work, depending on the amount of information you have to work with. The level of risk involves may also be a factor you want to consider
• Search sources – Where you look for identifying information will vary depending on the type of material in question.
• The level of risk – The type, severity and likelihood of risks arising related to a potentially orphaned work (and your risk appetite/the risk appetite of the organisation you work for!) If you’re making a high risk use like publishing the material in a book that will be made available for sale you should spend more time but a low risk use like using an image of a work in an exhibition or supplying a copy of it to a single client arquably requires less time

It is also a good idea to publish what details you can, if any, with the orphan work.

If you work at a library, archive or other collecting organisation you should familiarise yourself with your organisation’s internal policies and procedures related to orphan works and/or undertaking a reasonably diligent search before you start a search. In tandem – or if your organisation does not have such policies and procedures – you could also look at the National and State Libraries of Australasia (NSLA) Position statement: Reasonably diligent search for orphan works, and the associated Procedural guidelines: Reasonable search for orphan works, for advice.

A note on calculating the copyright duration: for statements related to the duration of copyright, we mean the end of the calendar year in which the act occurred. Therefore:

• ‘life of the creator’ means ‘the end of the calendar year in which the creator died’
• the year material was ‘first made public’ means ‘the end of the calendar year in which the material was first made public’
• the year the material was made means ‘the end of the calendar year in which the material was made’
• the year a published edition of a work or works was published means ‘the end of the calendar year in which the edition was published’.

To illustrate, when we say the life of the creator, what we mean is the end of the calendar year in which the creator died, e.g. if the author of a literary work died in June 2005 and the material had never been made public the posthumous copyright protection applies for 70 years starting from 31 December 2005.

Because the duration of copyright is based on the end of the calendar year, New Year’s Day is also Public Domain Day – the day that new works pass into the Public Domain because copyright protection of the material has expired. Once material enters the Public Domain there are no restrictions on how you can use it – you can do anything with it.

With all of the changes to the copyright duration provisions in the Copyright Act over the years it can sometimes be hard to tell if things are in the Public Domain in Australia. However, there are some materials where it is fairly clear. As of 1 January 2019, the following material is in the Public Domain in Australia:

• Photographs taken before 1955.
• Published literary, dramatic, musical or artistic works or engravings if the author died before 1955 
• Computer programs if author died before 1955.
• Sound recordings made before 1955.
• Unpublished works with a known author who died before 1 January 1949.
• Works where the creator is unknown that were made public before 1 January 1949.

The new copyright duration rules that came into effect on 1 January 2019 made changes for unpublished materials and orphaned works, further complicating Australia’s copyright term. To help we have created two flowcharts that step you through determining the copyright term of materials. View the webpage for the flowcharts to download them.

Further to the information provided on this page, it is important that you are mindful that, even with these general rules, it may still be difficult to determine copyright term for some items. The copyright duration for a particular item may vary where there are underlying materials included in the item such as photographs or illustrations in a book. Also, because the copyright term provisions in the Act have changed several times some older materials may still be subject to other copyright term rules. If you are dealing with older materials or a complex copyright situation we recommend you apply the advice outlined in the copyright duration tables published by the Attorney-General’s Department (formerly the Department of Communications and the Arts).

The duration of moral rights is different depending on whether the person is an author, filmmaker or performer, and the moral right in question.

For authors of literary, dramatic, musical and artistic works, they enjoy all three moral rights for the duration in which copyright subsist in the work

For filmmakers, the moral rights of attribution and against false attribution continue for the duration of copyright in the film, but the right of integrity of authorship in respect of a film ends when the filmmaker dies

Because of the ephemeral and time-dependent nature of live performances only recorded performances attract a duration of protection. A perfomer’s moral rights of attribution and against false attribution continue for the duration of copyright in the performance, but the right of integrity of performership ends when the performer dies.