Copyright: Its History and Its Law

Interpretation

"Book" includes any book or volume, and any part or division of a book or volume, and any article in a book or volume, and any pamphlet, periodical, sheet of letterpress, sheet of music, map, chart, diagram, or plan separately published, and any illustration therein:

"Dramatic work," in addition to being included in the definition of book, means any tragedy, comedy, play, drama, farce, burlesque, libretto, of an opera, entertainment, or other work of a like nature, whether set to music or otherwise, lyrical work set to music, or other scenic or dramatic composition:

"Lecture" includes a sermon:

"Musical work" in addition to being included in the definition of book, includes any combination of melody and harmony, or either of them, printed, reduced to writing, or otherwise graphically produced or reproduced:

"Periodical" means a review, magazine, newspaper, or other periodical work of a like nature:

"Pirated artistic work" means a reproduction of an artistic work made in any manner without the authority of the owner of the copyright in the artistic work:

"Pirated book" means a reproduction of a book made in any manner without the authority of the owner of the copyright in the book:

"Portrait" includes any work the principal object of which is the representation of a person by painting, drawing, engraving, photography, sculpture, or any form of art:

"Publish" and "Publication" in relation to a book refer to offer for sale or distribution, in each case with the privity of the author, so as to make the book accessible to the public:

"The Registrar" means the Registrar of Copyrights or a Deputy Registrar of Copyrights:

"State Copyright Act" means any State Act relating to the registration of the copyright or performing right, or lecturing right in books, or dramatic or musical works, or in artistic works, or fine art works, or in lectures.

Simultaneous publication or performance

5. What is simultaneous publication or performance.– For the purposes of this Act publication, performance, or delivery in the Commonwealth shall be deemed to be simultaneous with publication, performance, or delivery elsewhere if the period between the publications, performances, or deliveries does not exceed fourteen days.

Blasphemous, etc., matter

6. Blasphemous, &c., matter not protected.– No copyright, performing right, or lecturing right shall subsist under this Act in any blasphemous, indecent, seditious, or libelous work or matter.

Application of common law

7. Application of the Common Law.– Subject to this and any other Acts of the Parliament, the Common Law of England relating to proprietary rights in unpublished literary compositions, shall after the commencement of this Act, apply throughout the Commonwealth.

State copyright acts

8. State Copyright Acts not to apply to copyright under this Act.– (1.) The State Copyright Acts so far as they relate to the copyright in any book, the performing right in any musical or dramatic work, the lecturing right in any lecture, or the copyright in any artistic or fine art work shall not apply to any book, dramatic or musical work, lecture, or artistic work in which copyright, performing right, or lecturing right, subsists under this Act.

Rights under state laws

Saving of rights under State laws.– (2.) Subject to Part II. of this Act, nothing in this Act shall affect the application of the laws in force in any State at the commencement of this Act to any copyright or other right in relation to books or dramatic or musical works or lectures or artistic or fine art works acquired under or protected by those laws before the commencement of this Act.

PART II. – ADMINISTRATIONDivision 1. – The Registrar and the Copyright Office

Registrar

9. Registrar.– (1.) There shall be a Registrar of Copyrights.

(2.) The Governor-General may appoint one or more Deputy Registrars of Copyrights who shall, subject to the control of the Registrar of Copyrights, have all the powers conferred by this Act on the Registrar.

Copyright Office

10. Copyright Office.– For the purposes of this Act an office shall be established which shall be called the Copyright Office.

Seal

11. Seal of Copyright Office. – There shall be a seal of the Copyright Office, and impressions thereof shall be judicially noticed.

Division 2. – The Transfer of the Administration of the State Copyright Acts

Transfer of administration

12. Transfer of administration.– The Governor-General may, by proclamation, declare that, from and after a date specified in the proclamation, the administration of the State Copyright Acts of any State so far as they relate to the registration of the copyright in any book, the performing right in any musical or dramatic work, the lecturing right in any lecture, and the copyright in any artistic or fine art work, or to the registration of any assignment or grant of, or licence in relation to, any such right, shall be transferred to the Commonwealth and thereupon, so far as is necessary for the purposes of this section —

Effect of transfer

(a) Effect of transfer of administration. Cf. Patents Act, 1903, ss. 18 and 19.– The State Copyright Acts of the State shall cease to be administered by the State, and shall thereafter be administered by the Commonwealth so far as is necessary for the purpose of completing then pending proceedings and of giving effect to then existing rights, and the Registrar shall collect for the State all fees which become payable thereunder; and

(b) all powers and functions under any State Copyright Act vested in the Governor of the State or in the Governor with the advice of the Executive Council of the State or in any Minister officer or authority of the State shall vest in the Governor-General or in the Governor-General in Council or in the Minister officer or authority exercising similar powers under the Commonwealth as the case requires or as is prescribed; and

(c) all records registers deeds and documents of the Copyright office of the State vested in or subject to the control of the State shall, by force of this Act, be vested in and made subject to the control of the Commonwealth.

PART III. – LITERARY, MUSICAL, AND DRAMATIC COPYRIGHT

Copyright in books

13. Copyright in books.– (1.) The copyright in a book means the exclusive right to do, or authorize another person to do, all or any of the following things in respect of it: —

(a) To make copies of it:

(b) To abridge it:

(c) To translate it:

(d) In the case of a dramatic work, to convert it into a novel or other non-dramatic work:

(e) In the case of a novel or other non-dramatic work, to convert into a dramatic work: and

(f) In the case of a musical work, to make any new adaptation, transposition, arrangement, or setting of it, or of any part of it, in any notation.

(2.) Copyright shall subsist in every book, whether the author is a British subject or not, which has been printed from type set up in Australia, or plates made therefrom, or from plates or negatives made in Australia in cases where type is not necessarily used, and has, after the commencement of this Act, been published in Australia, before or simultaneously with its first publication elsewhere.

Performing right

14. Performing right in dramatic and musical works.—

(1.) The performing right in a dramatic or musical work means the exclusive right to perform it, or authorise its performance in public.

(2.) Performing right shall subsist in every dramatic or musical work, whether the author is a British subject or not, which has, after the commencement of this Act, been performed in public in Australia, before or simultaneously with its first performance in public elsewhere.

Lecturing right

15. Lecturing right in lectures.– (1.) The lecturing right in a lecture means the exclusive right to deliver it, or authorise its delivery, in public, and except as hereinafter provided, to report it.

(2.) Lecturing right shall subsist in every lecture, whether the author is a British subject or not, which has, after the commencement of this Act, been delivered in public in Australia, before or simultaneously with its first delivery in public elsewhere.

Commencement

16. Commencement of copyright, performing right, and lecturing right.– (1.) The copyright in a book shall begin with its first publication in Australia.

(2.) The performing right in a dramatic or musical work shall begin with its first performance in public in Australia.

(3.) The lecturing right in a lecture shall begin with its first delivery in public in Australia.

Term

17. Term of copyright, performing right, and lecturing right.– (1.) The copyright in a book, the performing right in a dramatic or musical work, and the lecturing right in a lecture, shall subsist for the term of forty-two years or for the author's life and seven years whichever shall last the longer.

(2.) Where the first publication of a book, the first performance in public of a musical or dramatic work, or the first delivery in public of a lecture takes place after the death of the author, the copyright, performing right, or lecturing right, as the case may be, shall subsist for the term of forty-two years.

(3.) Where a book or a dramatic or musical work is written by joint authors the copyright and the performing right shall subsist for the term of forty-two years or their joint lives and the life of the survivor of them, and seven years, whichever shall last the longer.

(4.) If a lecture is published as a book with the consent in writing of the owner of the lecturing right, the lecturing right shall cease.

Ownership

18. Ownership in copyright, performing right, and lecturing right.– (1.) The author of a book shall be the first owner of the copyright in the book.

(2.) The author of a dramatic work or musical work shall be the first owner of the performing right in the dramatic or musical work.

(3.) The author of a lecture shall be first owner of the lecturing right in the lecture.

Joint authors

19. Ownership in the case of joint authors.– Where there are joint authors of a book, or of a dramatic or musical work, or of a lecture, the copyright or the performing right, or the lecturing right, as the case may be, shall be the property of the authors.

Separate authors

20. Separate authors.– Where a book is written in distinct parts by separate authors and the name of each author is attached to the portion written by him, each author shall be entitled to copyright in the portion written by him in the same manner as if it were a separate book.

Encyclopædia and similar works

21. Encyclopædia and similar works.– The proprietor or projector of an encyclopædia or other similar permanent work of reference who employs some other person for valuable consideration in the composition of the whole or any part of the work shall be entitled to the copyright in the work in the same manner as if he were the author thereof.

Copyright in periodicals

22. Copyright in articles published in periodicals.– (1.) The author of any article, contributed for valuable consideration to and first published in a periodical, shall be entitled to copyright in the article as a separate work, but so that —

(a) he shall not be entitled to publish the article or authorise its publication until one year after the end of the year in which the article was first published and

(b) his right shall not exclude the right of the proprietor of the periodical under this section.

(2.) The proprietor of a periodical in which an article, which has been contributed for valuable consideration, is first published shall be entitled to copyright in the article, but so that —

(a) he shall not be entitled to publish the article or authorise its publication except in the periodical in its original form of publication, and

(b) his right shall not exclude the right of the author of the article, under this section.

Articles without valuable consideration

23. Copyright in articles published in periodicals without valuable consideration.– The author of any article contributed without valuable consideration to, and first published in, a periodical, shall be entitled to copyright in the article as a separate work.

Copyright, etc., personal property

24. Copyright, &c., to be personal property.– The copyright in a book, the performing right in a dramatic or musical work, and the lecturing right in a lecture shall be personal property, and shall be capable of assignment and of transmission by operation of law.

Copyright and other rights separate property

25. Copyright and other rights to be separate properties.– The copyright in a book, and the performing right in a dramatic or musical work and the lecturing right in a lecture shall be deemed to be distinct properties for the purposes of ownership, assignment, licence, transmission, and all other purposes.

Assignment

26. Assignment of copyright.– The owner of the copyright in a book, or of the performing right in a dramatic or musical work, or of the lecturing right in a lecture, may assign his right either wholly or partially and either generally or limited to any particular place or period, and may grant any interest therein by licence; but an assignment or grant shall not be valid unless it is in writing signed by the owner of the right in respect of which it is made or granted.

New editions

27. New editions.– Any second or subsequent edition of a book containing material or substantial alterations or additions shall be deemed to be a new book, but so as not to prejudice the right of any person to reproduce a former edition of the book or any part thereof after the expiration of the copyright in the former edition.

Provided that while the copyright in a book subsists no person, other than the owner of the copyright in the book or a person authorised by him, shall be entitled to publish a second or subsequent edition thereof.

Abridgements, etc., for private use

28. Making of abridgment, &c., for private use.– Copyright in a book shall not be infringed by a person making an abridgment or translation of the book for his private use (unless he uses it publicly or allows it to be used publicly by some other person), or by a person making fair extracts from or otherwise fairly dealing with the contents of the book for the purpose of a new work, or for the purposes of criticism, review, or refutation, or in the ordinary course of reporting scientific information.

Translations or abridgments

29. Translations or abridgments.– Where the author has parted with the copyright in his book and a translation or abridgment of the book is made with the consent of the owner of the copyright by some person other than the author, notice shall be given in the title-page of every copy of the translation or abridgment that it has been made by some person other than the author.

Failure of author to make translation

30. Failure of author to make or cause translation of book.– Where a translation of a book into a particular language is not made within ten years from the date of the publication of the book by the owner of the copyright or by some person by his authority —

(a) Any person desirous of translating the book into that language may make an application in writing to the Minister for permission so to do:

(b) The Minister may thereupon by notice in writing inform the owner of the copyright of such application and request him to make or cause to be made a translation of the book into that language within such time as the Minister deems reasonable or to show cause why such application should not be granted:

(c) If the owner of the copyright fails to comply with such notice the Minister may grant such application.

Copyright in translations

31. Copyright in translations.– Copyright shall subsist in a lawfully-produced translation or abridgment of a book in like manner as if it were an original work.

Reservation of performing right

32. Notice of reservation of performing right.– (1.) Where a dramatic or musical work is published as a book, and it is intended that the performing right is to be reserved, the owner of copyright, whether he has parted with the performing right or not, shall cause notice of the reservation of the performing right to be printed on the title-page or in a conspicuous part of every copy of the book.

(2.) Defendant's rights where no notice of reservation of performing right.– Where —

Defendant's rights where no notice

(a) proceedings are taken for the infringement of the performing right in a dramatic or musical work published as a book, and

(b) the defendant proves to the satisfaction of the Court that he has in his possession a copy of the book containing the dramatic or musical work and that that copy was published with the consent of the owner of the copyright, and does not contain the notice required by this Act of the reservation of the performing right,

judgment may be given in his favor either with or without costs as the Court, in its discretion, thinks fit; but in any such case the owner of the performing right (if he is not the owner of the copyright) shall be entitled to recover from the owner of the copyright damages in respect of the injury he has incurred by the neglect of the owner of the copyright to cause due notice to be given of the reservation of the performing right.

Report of lecture

33. Report of lecture in a newspaper.– (1.) Unless the reporting of a lecture is prohibited by a notice as in this section mentioned, the lecturing right in a lecture shall not be infringed by a report of the lecture in a newspaper.

(2.) The notice prohibiting the reporting of a lecture may be given —

(a) orally at the beginning of the lecture; or

(b) by a conspicuous written notice affixed, before the lecture is given, on the entrance doors of the building in which it is given or in a place in the room in which it is given.

(3.) When a series of lectures is intended to be given by the same lecturer on the same subject, one notice only need be given in respect of the whole series.

PART IV. – ARTISTIC COPYRIGHT

Artistic copyright

34. Meaning of copyright.– The copyright in an artistic work means the exclusive right of the owner of the copyright to reproduce or authorise another person to reproduce the artistic work, or any material part of it, in any manner, form, or size, in any material, or by any process, or for any purpose.

35. Copyright in artistic works.– Copyright shall subsist in every artistic work whether the author is a British subject or not, which is made in Australia after the commencement of this Act.

Commencement and term

36. Commencement and term of artistic copyright.– The copyright in an artistic work shall begin with the making of the work, and shall subsist for the term of forty-two years or for the author's life and seven years whichever shall last the longer.

Ownership

37. Ownership of copyright in artistic work.– The author of an artistic work shall be the first owner of the copyright in the work.

Portraits

38. Copyright in portraits.– When an artistic work, being a portrait, is made to order for valuable consideration, the person to whose order it is made shall be entitled to the copyright therein as if he were the author thereof.

Photographs

39. Copyright in photographs.– (1.) When a photograph is made to order for valuable consideration the person to whose order it is made shall be entitled to the copyright therein as if he were the author thereof.

(2). Subject to subsection (1) of this section, when a photograph is made by an employee on behalf of his employer the employer shall be deemed to be the author of the photograph.

Engravings and prints

40. Engravings and prints.– (1.) Subject to section thirty-four of this Act the engraver or other person who makes the plate or other instrument by which copies of an artistic work are multiplied shall be deemed to be the author of the copies produced by means of the plate or instrument.

(2.) When the plate or other instrument mentioned in this section is made by an employee on behalf of his employer the employer shall be deemed to be the author of the copies produced by means of the plate or instrument.

Sale of painting, etc.

41. Copyright in case of sale of painting, statue, or bust. (1.) – When the owner of the copyright in any artistic work being a painting, or a statue, bust, or other like work, disposes of such work for valuable consideration, but does not assign the copyright therein, the owner of the copyright (except as in this section mentioned) may in the absence of any agreement in writing to the contrary make a replica of such work.

Right to make replicas

Right of author to make replicas of statues, etc., in public places. (2.) – When a statue, bust, or other like work, whether made to order or not, is placed or is intended to be placed in a street or other like public place, the author may, in the absence of any agreement to the contrary, make replicas thereof.

Personal property

42. Artistic copyright is personal property.– The copyright in an artistic work shall be personal property, and shall be capable of assignment and of transmission by operation of law.

Copyright and ownership

43. Copyright and ownership in artistic works.– The copyright in an artistic work and the ownership of the artistic work shall be deemed to be distinct properties for the purposes of ownership, assignment, licence, transmission, and all other purposes.

Assignment

44. Assignment of copyright.– The owner of the copyright in an artistic work may assign his right wholly or partially and either generally or limited to any particular place or period and may grant any interest therein by licence; but an assignment or grant shall not be valid unless it is in writing signed by the owner of the copyright.

PART V. – INFRINGEMENT OF COPYRIGHT

Infringement

45. Infringement of rights under Act.– If any person infringes any right conferred by this Act in respect of the right in a book, the performing right in dramatic or musical work, the lecturing right in a lecture, or the copyright in an artistic work, the owner of the right infringed may maintain an action for damages or penalties or profits, and for an injunction, or for any of those remedies.

Damages under performing or lecturing right

46. Damages in case of performing right or lecturing right.– In assessing the damages in respect of the infringement of the performing right in a dramatic or musical work or the lecturing right in a lecture, regard shall be had to the amount of profit made by the infringer by reason of the infringement, and to the amount of actual damage incurred by the owner of the performing or lecturing right.

Objection to title

47. Notice of objection to title.– The plaintiff in any action for the infringement of a right conferred by this Act shall be presumed to be the owner of the right which he claims, unless the defendant in his pleadings in defence pleads that the defendant disputes the title of the plaintiff, and states the grounds on which the plea is founded, and the name of the person, if any, whom the defendant alleges to be the owner of the right.

Limitation of actions

48. Limitation of actions. (Cf. 5-6 Vict. c. 45, s. 26.) – No action for any infringement of copyright, performing right, or lecturing right under this Act shall be maintainable unless it is commenced within two years next after the infringement is committed.

Property in pirated works

49. Property in pirated books or artistic work.– All pirated books and all pirated artistic works shall be deemed to be the property of the owner of the copyright in the book or work and may, together with the plates, blocks, stone, matrix, negative, or thing, if any, from which they are printed or made, be recovered by him by action or other lawful method.