'Copyrights'

Copyright of 'Australia'

The original tune & words of 'Advance Australia Fair' by Peter Dodds McCormick became free of copyright in 1966. However, to understand the current situation with regard to copyright of the Australian national anthem we need to take a little journey through the recent history of this issue.

As at 26 October 2006 the Australian Government on its website dealing with national icons 'Its an Honour' states:

• The two authorised verses of the Australian National Anthem were proclaimed in 1984.
  
  
• The Commonwealth owns copyright in the words of the Australian National Anthem as proclaimed. It also holds copyright to particular arrangements of music of the Australian National Anthem.
  
  
• As copyright owner the Commonwealth makes the Australian National Anthem freely available for use within the community for non-commercial purposes.
  
  
• While permission is not required to use, perform or record the Australian National Anthem for non-commercial purposes, there is a requirement to seek permission for commercial use of the anthem. The words and music are in the public domain.
  
  
• The Australian National Anthem is an important national symbol of Australia and should be used with respect and dignity.
  
  
• The Australian National Anthem should not be modified and alternative words should not be used.
  
  
• As copyright owner, the Commonwealth has certain exclusive rights in respect of the Australian National Anthem including the right to authorise third parties to reproduce, perform or communicate the Australian National Anthem to the public.
  
  
• In order to promote appropriate performance and use of the Australian National Anthem, the Commonwealth allows non-commercial use by the public without case-by-case permissions.
  
  
• However, permission must be obtained in respect of use of the Australian National Anthem for commercial purposes, including advertising. Any decision to grant permission to use the Australian National Anthem for commercial purposes will be made by the Department of the Prime Minister and Cabinet in its absolute discretion and may be subject to conditions including but not limited to the following:
  
  
  • The tune or the words of the Australian National Anthem may not be modified, parodied or demeaned.
    
    
  • Alternative words cannot be substituted for the words of the Australian National Anthem.
    
    

However, this claim of copyright over the national anthem was brought into question following the use by 'Meat and Livestock Australia' of the National Anthem in an advertisement to promote lamb in the weeks leading up to Australia Day 2002. To clarify the situation the Commonwealth commissioned a report to consider special trade mark protection for symbols and identifiers which they believe to be ‘national icons’.

In December 2002 the 'Advisory Council On Intellectual Property' delivered the report 'The Protection Of National Icons' to the Parliamentary Secretary to the Minister for Industry, Tourism and Resources, the Hon Warren Entsch MP. In part this report stated:

• Although PM&C was advised that the Commonwealth probably owns copyright in the words and tune of the national anthem they were also advised that this is not sufficient to enable the government to control its use. Although it might be expected that the risk of negative public reaction and the prospect of bearing the brunt of public opprobrium would act as a disincentive to the use of this sort of publicity campaign, these factors were clearly not a satisfactory deterrent in this case.
  
  
• Of particular concern is inappropriate use of the Australian National Anthem. The issue was brought to a head with the use by Meat and Livestock Australia of the National Anthem in an advertisement to promote lamb in the weeks leading up to Australia Day 2002. The tune of the National Anthem accompanied by substituted words (see Attachment B) provoked a strong and adverse public reaction. The advertisement was subsequently taken off-air and replaced with a revised version again based around the tune of the National Anthem.
  
  
• In essence, there is only a limited basis for restraining any inappropriate use of the National Anthem. Whilst legal advice suggests that the Commonwealth owns copyright in the words and tune of the National Anthem as proclaimed, it does not however own copyright in respect of the words and tune of the song Advance Australia Fair which was first published and performed during the latter half of the 19th Century. Because of similarities between the words and tune of the National Anthem and Advance Australia Fair, it is the view of the Australian Government Solicitor that it would be difficult for the Commonwealth to establish infringement of the National Anthem under the Copyright Act 1968.
  
  

After considering this report 'IP Australia' on the 2nd of May 2005 issued the media release 'Protecting Australia's National Icons' . In part this document stated:

• Following consideration of a report by the Advisory Council on Intellectual Property (ACIP), the Australian government has decided not to introduce a formal system of identifying and protecting the use of Australia’s national icons.
• The Australian Government considers that the existing legislative framework provides a sufficient range of measures to protect national icons from inappropriate use.
• The Government also considers that the cost of having any form of additional special system for protecting icons would lead to confusion and outweigh any benefits.
• Mr Macfarlane thanked ACIP for their work on the report, particularly as the issues are very complex with no clear cut answers.

The Government then issued a response to the Advisory Council on Intellectual Property’s Report on ‘The Protection of National Icons’ indicating they accepted the body of the report and 'IP Australia's' assessment. However, they decided not to accept the report’s recommendations for a specifically designed system for protecting national icons.

So in light of the above Anthem Australia's position is that the Australian people are ultimately the copyright holders of their national anthem and until such time as 'Australia' as the proposed national anthem becomes the actual national anthem then 'Anthem Australia' retains the right to coordinate on behalf of all Australians any changes to be made to 'Australia'.

Copyright of the composite image is held by 'Anthem Australia' who again retain the right to coordinate on behalf of all Australians any changes to be made to this composite image.

Copyright of other material used by Anthem Australia

• The 'Southern Cross' image is reproduced courtesy of © 'Akira Fuji' / David Malin Images.
  
  
• The 'Red Desert Sand' image is reproduced courtesy of © 'Steve Strike' / Outback Photographics.
  
  
• The book 'Open Source Democracy: How Online Communication is Changing Offline Politics' (ISBN: 1841801135) is reproduced under an 'Open Access' licence courtesy of © Douglas Rushkoff and Demos (www.demos.co.uk).
  
  

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