Performers' rights in relation to unauthorised audio recordings lasts for 50 years, and in relation to unauthorised audio-visual recordings lasts for 20 years, from the year in which the performance was given. Performers would also have a share of the copyright in unauthorised sound recordings of their performances. Performers’ rights in their sounds recordings last for 70 years from the year in which it was published.
Unauthorised use of a performance entitles the performer to sue for an injunction and/or damages. Criminal penalties are also applicable.
How long does copyright last?
Literary, dramatic or musical works
The duration of copyright protection is dependent on a number of factors, including the nature of the work, the time when it was made and whether it has been published. The duration of protection for copyright works that have been published (or otherwise made available to the public) generally lasts for 70 years after the death of the creator. There are some exceptions to this general rule.
Copyright subsists indefinitely in a literary, dramatic or musical work that has not been published, performed in public, broadcast or sold as a recording during the life of the author. If the work is posthumously made public in any of those ways, the copyright will terminate at the end of 70 years after that event.
In the case of artistic works, other than engravings, copyright protection also lasts for 70 years after the end of the year in which the artist dies whether or not it has been published. The term of copyright in an engraving is similar to that for a literary work, so that copyright subsists in an engraving that is unpublished at the author’s death until 70 years after publication or otherwise indefinitely.
The term of copyright protection for photographs taken before 1955, regardless of whether the author has since died or is still alive, has expired. The life plus 70 years term for artistic works applies to all photographs taken after that time.
The duration of copyright protection for sound recordings made after 1954 and films (made after 1 May 1969) is generally 70 years from the end of the year of first publication. If the film or sound recording is unpublished, the protection period is indefinite until it is published.
The duration of copyright in radio and television broadcasts is 50 years from the making of the broadcast.
Copyright in the published editions of works lasts for 25 years from the year of first publication of the edition.
The Copyright Act has specific provisions which clarify the duration of copyright protection for works of joint authorship (ss 80-81), anonymous and pseudonymous works (s 34), works in which the Government owns copyright (ss 180-181), foreign works and works made by international organisations (Part VIII).
Copyright protection that had already expired before the date of commencement of the present Act (that is, 1 May 1969) cannot be revived. However, the provisions of earlier copyright legislation are still relevant in relation to works in copyright immediately before the commencement of the present Act.
When is copyright infringed?
The copyright in any work or other subject-matter is infringed when any act which the copyright owner has the exclusive right to do is done by a person in Australia who is not the copyright owner (or his or her licensee). Examples include when a work is published, reproduced or performed in public without the copyright owner's permission. This general rule is subject to a number of specific exceptions in the Copyright Act.
The copyright in any work or other subject-matter is also infringed when any act which the copyright owner has the exclusive right to do is authorised to be done by a person in Australia who is not the copyright owner (or his or her licensee). For example, a person could be taken to have authorised a copyright infringement if they provide access to a photocopier and expressly or impliedly permit someone else to make infringing copies on it. In the online environment, providing links to infringing material may, in some circumstances, constitute authorisation of an infringement.
It is not necessary for a whole work to be reproduced or for more than one reproduction to be made for an infringement of copyright to occur. An infringement of copyright occurs so long as a substantial portion of a work or subject-matter has been reproduced or other copyright use is made of it (eg it is communicated to the public). The test for what is a substantial portion is often a qualitative rather than a quantitative test. It is the quality or essence of what has been taken rather than the amount that is taken that will often determine whether the portion taken is 'substantial'.
What about photocopying, scanning or electric copying?
Photocopying or scanning a literary, artistic, dramatic or musical work is one of the more common ways of infringing copyright in works as it involves reproduction of the work. A large number of authors and publishers are members of a copyright collecting body called Copyright Agency Limited (CAL www.copyright.com.au). CAL is authorised to collect royalties for the photocopying of these works. A licence from CAL can be obtained for the photocopying of published literary works. Alternatively, the permission of the author or publisher should be sought.
CAL also handles some licences for copying of works in an electronic format. These licences deal with original electronic work and allow educational institutions to reproduce and communicate it to their staff and students. Note that the work must already be in an electronic form.