June 2009

This information is for general guidance only; it is not legal advice.

You can make a copy, for private and domestic use, of a photograph you own, provided:

• you own the photograph in hardcopy or electronic form;
• the photograph is not an infringing copy (for example, it was not illegally downloaded from the Internet);
•  the copy is in a different format from the photograph you own (if the photograph is in hardcopy form, the copy must be in electronic form; if the photograph is in electronic form, the copy must be in hardcopy form);
• the copy is for your private and domestic use.

The legislation says that the copy must be made to use instead of the original, but the government has said that “instead of”

indicates that the owner may view a work by using the original photograph and by means of a … copy; that is, the owner is not required to store the original.

Once you have made a copy from a photograph, there are restrictions on what you can do with the copy and with the photograph. The copy become an infringing copy if you:

• sell it offer it for sale;
• rent it or offer it for rent;
• distribute it (for example, give it to someone); or
• dispose of the photograph to someone (for example, if you sell it or give it away or donate it).

You can lend the copy to:

• people you are living with; and
• members of your family.

You cannot, however, lend the copy to anyone else.

Once you have made a copy, you cannot make another copy in form which is “substantially identical”. The legislation allows you to make one or more additional copies of a photograph you own provided each is in a different form, but it is not clear when a copy will be in a “substantially identical” form to another copy.

If making the copy involves the incidental making of temporary copies of the photograph, you must destroy the temporary copies as soon as practicable. If you do not, it is an infringing copy.

Your agreement with a photographer

This format-shift exception does not override any legal obligations you may have as a result of an agreement with a photographer. For example, if you have signed an agreement with a photographer, and as part of that agreement you have undertaken not to make digital copies of photographs supplied by the photographer, that obligation is not affected by the exception in the Copyright Act. If you make digital copies of the photographs supplied by the photographer, you may not infringe copyright but you may breach your agreement with the photographer.

More

• Q&As from photographers' clients

• Government report on format-shifting provisions for photographs and films