Time to improve our copyright laws, to promote Australian culture

copyright 210x150Cultural sustainability requires widespread availability

A nation’s culture is based not only on its way of life, but also on its history and its historical cultural outpourings. For this reason it is important that the cultural work of a nation’s artists and writers be available to the general population as much as possible.

The availability of the works of Australian authors, like Henry Lawson, “Banjo” Paterson, Mary Gilmore, and Miles Franklin, are essential to the cultural development and sustainability of our national culture. The intellectual property of such works should be freely available, so that they can be republished by as many people as possible. Such widespread availability is important for the maintenance and development of our national culture.

Unfortunately, the availability of our nation’s historical output is severely limited by the regressive nature of current Australian copyright law.

Australian law was changed due to American demands

Australian copyright law used to dictate that copyright of an author’s works existed for 50 years after the end of the year of the author’s death. Although this placed a decent-sized roadblock in the way of republishing of historical Australian works, the situation was to become much worse with the advent of some sections included in the Copyright Amendment Act 2006.[1]

During Australia’s trade negotiations with the USA over the “Australia–United States Free Trade Agreement” (2004), the Americans demanded that we changed our copyright rules from 50 years to 70 years. And we did (hence the Copyright Amendment Act 2006). We just rolled over and changed our law at the behest of another country! It was a pathetic display of internationalist kowtowing.

The truth about copyright: Corporations, not an author’s family, are the major beneficiaries

Copyright law, in its essence, is a good law to have to protect the income of artists and authors. After all, why would authors produce books, plays, etc., if their work could be just copied and republished by anyone else during their lifetime. However, it is the way that it is applied after the death of authors that makes current copyright law questionable.

The fact is that the vast majority of works created (which automatically fall under copyright law) are never widely republished after the author’s death (with the exception of libraries which use digital and microform reproduction to make historical newspapers, etc., available).

After their authors’ earthly demise, the vast majority of published works (e.g. newspaper reports, magazine articles, opinion pieces, pamphlets, paperbacks, etc.) just lie around gathering dust; in fact, most of them start to gather dust during their author’s lifetime. It is only in rare instances that an author’s works go on being widely published many years after the author’s death (e.g. Henry Lawson and Banjo Paterson in Australia; whilst J. R. R. Tolkien and C.S. Lewis are overseas examples).

For those rare instances when big money is being made after an author’s death from copyright laws, the beneficiary is usually not the author’s family, but instead publishing companies. This is why big publishing corporations are major backers of extended copyright laws; because they are the ones who stand to benefit the most from them.

What does a 70-year copyright rule do for us?

1) You could be required to make a copyright payment every time you wanted to sing “Happy Birthday” in public. An American publishing company copyrighted the song in 1935; as the author, Patty Hill (USA), died in 1946, under the 70-year rule the copyright would expire after 2016, however, under American law with its copyright extension rules, its copyright status will not expire until after 2030. In Australia, “Happy Birthday” will be copyrighted until the end of 2016.[2]

2) Until recently, you could be required to make a copyright payment for singing “Waltzing Matilda” in public (at least until 1991, and possibly until 2011). In later years, the copyright to the song was held by Allan’s Music Company. The author of the words, Banjo Paterson, died in 1941, which means his work is covered by the old 50-year rule (the new 70-year rule applies to those who die after 1955). However, apparently “Waltzing Matilda”, as a composition, was copyrighted in America in 1941, with the copyright lasting up until 2011.[3]

3) The “Kookaburra” song (“Kookaburra sits in the old gum tree”) is still under copyright. Its Australian author, Marion Sinclair, died in 1988 and so the copyright will last up until 2058. A homage to this well-known and popular Australian song was included in the 1981 song “Down Under” (“I come from a land down under”) by the pop music group “Men at Work”; however, due to copyright law, the band was sued by an American corporation in 2008. This terrible case is believed to have contributed to the suicide of the player of the flute homage, Greg Ham, in 2012. The details of this case may even indicate that a deeper overhauling of our system of copyright law is warranted.[4]

Need for a reasonable copyright law

The overseas-imposed 70-year copyright law is not helpful for the development and furtherance of Australian culture. Even the 50-year rule was bad enough. If we are to cover those rare instances where a family may substantially benefit from copyright after an author’s death, we should select a more reasonable time period, such as 25 years (which is generally used as a rough yardstick for covering the span of a following generation).

It is the case that the works of some authors are re-discovered after their death. Vivaldi is one such example, although his “artistic resurrection” took place some centuries later.[5] In the Australian context, with a much younger culture than those of Europe, it is even more important that we throw open the doors to the re-publishing of works of past authors, both historical and relatively recent.

The works of Joseph Furphy, the classic Australian author, never really took off until after his death; his later popularity was largely due to the determined promotion of his writings by Kate Baker.[6] Although this occurred within a short time after his death (i.e. falling inside the standard copyright period), it is indicative of the possibilities for many Australian works that currently lie dormant, works which could now be undergoing public revival and promotion by small publishing houses, and even individuals, if such works were freely available to promote and republish.

With the advent of the digital age and cheap printing facilities, we should be making it easier for anyone to republish the works of past Australian authors and to breathe life into some of the sleeping beauties of Australian culture. There is an immense treasure trove of Australian art and literature that could be opened right up, so long as we change the law to enable it to happen. If Australia’s national culture is to not only survive, but thrive, we must prepare the pathway to make it happen.


[1] “Find an Answer”, Australian Copyright Council
Copyright law of Australia”, Wikipedia
Copyright law of Australia”, Wikipedia
Copyright – Frequently Asked Questions”, Australian Publishers Association
Copyright”, IP Australia [a government intellectual property rights organisation]

[2] “Happy Birthday, We’ll Sue”, Snopes, 27 April 2007
Happy Birthday to You”, Wikipedia
Uncorking that Joyful Noise”, PrincetonInfo.com (“U.S.1” newspaper), 26 March 2003 (Bart Jackson) [see: the section “’Happy Birthday’ Connection”]

[3] “Waltzing Matilda is owned by American company”, Hotsource, 29 January 2009
Intellectual property rights, the human genome and Waltzing Matilda”, SunZu: The Art of Business, 29 November 2011
Copyright in ‘Waltzing Matilda’”, Roger Clarke, 20 May 2001
Waltzing Matilda”, Wikipedia

[4] “Kookaburra”, Wikipedia
Down Under (“I come from a land down under”) [music video, sung by Men At Work] ”, Institute of Australian Culture, 30 October 2012
The biggest hit”, Sydney Morning Herald, 21 July 2012 (David Leser)

[5] “Antonio Vivaldi”, Wikipedia

[6] “Baker, Catherine (Kate) (1861–1953)”, Australian Dictionary of Biography, National Centre of Biography, Australian National University (John Barnes)

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