This page explores the history, challenges and evolving landscape of copyright law and attempts to explain some of the complexities.
The first copyright law was written in England in 1710 to allow authors and their printers to make a living from sales of copies of their books and to discourage pirate copying. As new technologies developed, copyright laws expanded to include sheet music, artwork, photographs, recorded music, film and eventually software.
Restrictions on copying and modifying proprietary software prompted the development of free software licences 1980s, which contributed to the open-source movement. Widespread adoption of the internet in the 1990s enabled unprecedented sharing and access, but copyright could also restrict how material was reused and who had access. Open access licences such as Creative Commons emerged as way for copyright holders to give advance permission for their works to be used and shared, subject to conditions such as attribution.
Generative AI is the latest challenge to copyright and open licensing frameworks.
Synthetic or slop? by Marcin Wilkowski used under CC-BY 4.0
The philosophical theories underpinning copyright influence legislation and judicial decisions. Differences in how copyright is understood and applied across jurisdictions often reflect the relative influence of these theories.
The Universal Declaration of Human Rights (Article 27) says:
Copyright, in theory, should support the declaration of human rights by balancing the interests of those who create content, with the public interest in having the widest possible access to education, culture and knowledge. Instead, the current copyright system poses obstacles for those who learn, teach, research, create, preserve or seek to enjoy the world’s cultural heritage.” Access to knowledge coalition (A2K)
This tension is particularly apparent in the scholarly publishing industry, where large commercial publishers use copyright transfer agreements to control access to research outputs.
The rapid pace of technological advancements outstrips the slower process of legislative updates. The development of photography, mechanical music players and computer software have all challenged concepts around copyright. The internet is designed for sharing and distributing material; however, it comes with significant challenges in finding the balance between protecting the rights of creators and users access to information and innovation.
The legal debate over use of copyright material for training large language models is a current example.
Copyright legislation varies from country to country, but there is an international agreement, the Berne Convention, to apply the copyright law of the country where a work is used regardless of where it was published. The Berne convention also sets minimum standards for copyright laws.
All countries recognise the need to balance the rights of both owners and users of information and culture, therefore copyright legislation includes clauses to limit copyright owners’ rights and allow exemptions for users. Different countries adopt different approaches leading to situations where copying a work from the internet may infringe copyright in one country but be legal elsewhere.
Example: Under the NZ Copyright Act s27(1)(h) Royal commission reports are not given copyright protection. Australian copyright law has no equivalent exclusion, so a researcher in Australia would have to get permission to reuse a substantial extract or table or figure from a NZ Royal commission report.
Fair dealing: In Australia, the Copyright Act lists the purposes and conditions for using copyright material without infringing the copyright owners rights. The UK, Canada and India all allow exceptions based on variations of ‘fair dealing’.
Fair use: In the US, use of copyright material is based on principles of ‘fairness’ rather than itemising specific purposes and conditions in the legislation. Precedent is set through case law.
Fair dealing provides greater clarity than ‘fair use’, however it is less adaptable and can limit development of new technologies. For example, the use of ‘free to read’ material on the internet for training large language models (LLM’s) may be considered ‘fair use’ in the US but is not permitted under ‘fair dealing’ in Australia.
An orphan work is any copyrighted work whose copyright owner(s) cannot be identified or located. Examples of orphan works include unpublished letters and diaries, photographs and artworks, corporate or government publications where an organisation no longer exists. The Orphan Works Scheme was introduced in 2026 to make it less risky to reuse orphan works when permission cannot be obtained. The scheme is particularly valuable for researchers using historical works.
For more information about using orphan works see Using others works in publications.
The Attorney Generals Department manages copyright legislative reform and consultations in Australia. Current priorities areas relate to:
Some advocates for copyright reform and open scholarship in Australia are: