Copyright Expiration in Australia - Works Held in Libraries

Works Held in Libraries

The National Library Picture Catalogue states that permission must be asked to copy photos from their site. However in the case of images taken before 1955, it is seen as possibly being a request with no legal basis because the images are public domain. Once something is in the public domain, the copyright belongs to everyone. An argument given by the British Library online is that "The original work(s) are in the public domain, the copies the Library supplies are in copyright as they are new copies of the original materials which are what copyright is held. This is why you will need to clear permission." The State Library of Victoria, which does not hold copyright for some of its works says that "It must be stressed that obtaining permission to reproduce an item is not the same as copyright. The State Library of Victoria often does not hold the copyright for items in its collections"

Under the old pre-FTA system, all Australian photos taken before 1 January 1969 were out of copyright 50 years from when taken. After 1 January 1969, it was 50 years from the end of the year it was first published. Thus, when the FTA came into effect on 1 January 2005, only photos taken before 1 January 1955 were out of copyright under the old system. Now, for a photo taken on or after 1 January 1955, copyright for non-Crown Copyright photos is "life of creator plus 70". So all photos taken in 1955 are not going to become public domain at the end of 2005.

The copyright in the words for a newspaper article (or in a drawing) is owned by the writer (or illustrator, etc.). If the writer died before 1 January 1955, then the work is out of copyright; alternatively if the author is unknown (and cannot be discovered by reasonable enquiry), and if first published before 1 January 1955, then the work is out of copyright. The copyright in the layout expires 25 years after the end of the year in which it was first published. For artistic works other than photographs and engravings (so including drawings, paintings, sculpture) it was "life plus 50" and is now "life plus 70". If the creator is unknown, it was "first published plus 50" and is now "first published plus 70". So if the creator died before 1 January 1955 or is unknown and the work was first published before 1 January 1955, then the work is out of copyright. This "in general" applies even if the creator was an employee of the newspaper which holds the actual copyright.

For artistic works other than photographs and engravings (so including drawings, paintings, sculpture) it was "life plus 50" and is now "life plus 70". If the creator is unknown, it was "first published plus 50" and is now "first published plus 70". So if the creator died before 1 January 1955 or is unknown and the work was first published before 1 January 1955, then the work is out of copyright. This "in general" applies even if the creator was an employee of the newspaper which holds the actual copyright.

Public institutions would like to maintain that it is their reproduction of a Public Domain work which has a copyright attached, since they cannot claim that the author/artist's copyright exists. The UK government site is not clear about the status of faithful reproductions, mentioning that it may be possible to re-use a reproduction without permission, but also that the institution/photographer may claim copyright by virtue of the "skill and labour" which has gone into making the reproduction. However, the 1999 Bridgeman Art Library v. Corel Corporation ruling (in U.S. jurisdiction) runs counter to this view, and the institutions' stance has possibly not been tested in higher European or Australian courts. It is contestable whether these institutions would be able to demonstrate economic loss resulting from the republishing of one of their (low-resolution) reproductions in a non-profit/educational context on the web (e.g., on Wikipedia), since they themselves have freely and similarly published these very same images. A further argument against the practices of these institutions can be read here .

One view is that the National Library has probably not created a new work through the process of scanning the images and placing them online. So the images are still under public domain. A library may place you under contractual restrictions to use of a high quality reproduction.

For non-government photographs: if taken before 1 May 1969, copyright expires 50 years from the end of the year they were taken; on or after 1 May 1969, 50 years from the end of the year of first publication. Thus the interpretation that images made before 1955 are out of copyright. However, it would appear that this does not apply to government works. For works made by the government in or before 1969, copyright expires after 50 years; for those made after 1969 it expires 50 years from the date the work was first published. Copyright exists in perpetuity for photographs taken after 1 May 1969.