Copyright is a form of intellectual property that is based on a person’s skill and labour in creating a ‘copyright work’. Copyright gives the creator of an original work the exclusive right to reproduce the work, use it commercially and be attributed as its creator.
What copyright protects: the expression of ideas
Copyright does not protect information or ideas, but only the expression of information and ideas. For instance, today’s forecast maximum temperature is not protected by copyright, but the script of a weather report, or a newspaper graphic containing this information might be protected.
Only certain types of expression are protected by copyright. These include artistic works such as paintings or blueprints, literary works such as novels, song lyrics or computer programs, sound and video recordings and even broadcasts.
Copyright is created automatically
Unlike patents and trade marks, or even copyright law in some other countries, there is no need to register copyright in Australia; the author’s rights are created whenever an idea is expressed in a “material form”, for example by:
- Writing a story or poem
- Writing, performing or recording a song
- Writing a computer program or designing a website
- Taking a photograph or painting a picture
- Creating a sculpture or other three-dimensional work such as jewellery or buildings
- Making or broadcasting a film.
Copyright law in Australia is governed by the Copyright Act 1968 (Cth), which applies to any protected work that is first published in Australia or where the author of the copyright is an Australian citizen. However, in some circumstances, through international treaties, Australian copyright law may also apply to acts done in Australia which relate to copyright created overseas.
The rights of a copyright owner
The many rights contained within the Copyright Act are often divided into two separate bundles: ‘economic rights’ and ‘moral rights’. Economic rights can be bought, sold and licensed by original owners of the copyright, while moral rights always lie with the original creator and cannot be transferred to others.
The Copyright Act gives the owner of copyright the exclusive right to do, or the authority to do particular things with the protected work or matter. These include:
- Reproducing it
- Adapting or translating it
- Performing, broadcasting, publishing or communicating it to the public
- Importing it.
Most commercial dealings with copyright matter deals with these economic rights. Read more about the infringement of economic copyrights.
Moral rights are special personal rights that are owned by the creator of any copyright matter. These rights include:
- The right to attribution as the work’s author whenever the work is published or reproduced
- The right to prevent any other person from falsely claiming they are the author of the copyright work
- The right to prevent their work being subjected to derogatory treatment.
Moral rights cannot be assigned or sold to any other person and cannot be owned by a company. Most moral rights last for the duration of the copyright, with the exception of the author’s right of integrity (the right to prevent derogatory treatment of a copyright work), which lasts only for the author’s lifetime.
Performers’ rights are similar to moral rights and are owned by performers of copyright works in performances such as sound recordings, cinematography , and dramatic works. “Performers” include actors, singers, musicians, and, in some cases, conductors, but do not include companies.
Similarly to moral rights, performers have the right to attribution of their performance, the right to prevent false attribution, and the right of integrity of performership (the right to prevent derogatory treatment of their performance).
Ownership of copyright and the rights of employers
Copyright is usually first owned by the author, or the creator of the copyright work. An important exception is copyright matter created by an employee within the scope of their employment. In these circumstances the copyright will be owned by the employer, unless the employment agreement states otherwise.
Independent contractors will usually own the copyright in any work they create unless agreed otherwise.
In many circumstances it is possible for the author to license, sell or assign their copyright (except for moral rights) to another person or company, who can then treat the copyright as if it was their own. Find out more about copyright licencing services.
Length of copyright protection
Under the Copyright Act, copyright may last for up to 70 years after the death of the author, however, different time limits apply in relation to different types of copyright.So it is always important to seek legal advice about this.
The interaction of copyright law and design law
Given that copyright can exist in relation to three-dimensional objects, there is some overlap between copyright law and design law in Australia.
The Copyright Act provides that copyright in three-dimensional works will not be infringed in some circumstances. The legislation in relation to these issues is quite complex, however in some instances the solution may be to register an Australian design instead. At Davies Collison Cave we can assist you with the registration of designs and provide advice on whether Australian copyright or designs legislation will apply. For more information regarding design registration in Australia click here.
How copyright is infringed
A person’s copyright is infringed if their work is copied or used by another person without their consent. Under the Copyright Act, copyright can be infringed even if the whole of the copyrighted work has not been copied. All that is required is that a “substantial part”, or a recognisable part of the work has been copied.
Types of copyright infringing acts
Copyright infringement does not only extend to direct copying. Under the Copyright Act there are many different types of activities that may constitute copyright infringement if they were done, or authorised to be done, without the consent of the copyright owner.
- Reproducing the work
- Publishing or performing the work in public
- Communicating the work to the public (which can include displaying the work in public, posting it on the internet, or broadcasting it on television)
- Adapting the work (such as adapting a story into a screenplay)
- Importing counterfeit goods into Australia for commercial purposes.
Defences to copyright infringement claims
Contrary to popular belief, there is no “10%” rule about how much of a work can be copied without infringing copyright in Australia. However, in some circumstances a person will have a defence to copyright infringement if they can show their use of the copyright was a ‘fair dealing’ for a particular purpose, such as:
- Research or study
- Criticism or review
- Parody or satire
- Reporting news.
It is always advisable to seek legal advice regarding these defences before relying upon them.
Protecting your copyright
Copyright notices: an optional tool
A copyright notice is a small note printed on a copyright work which usually includes the © symbol, the date on which the work was created or the name of the person who authored the work.
There is no legal requirement in Australia for copyrighted works to contain a copyright notice. However, copyright notices can be a useful tool for reminding others that your work is protected by copyright law, and that unauthorised copying of that work is not allowed.
If you believe there is a risk that items infringing your copyright will be imported into Australia, it is possible to lodge a Notice of Objection with Australian Customs giving them a description of your copyrighted work. The Notice assists Australian Customs Services in identifying and seizing items which may be counterfeit items. Customs Notices are an effective way to prevent counterfeit goods from reaching the marketplace.
The Copyright Act sets out the procedures that must be followed in order for a copyright owner to protect their rights if counterfeit goods have been seized. The process for lodgement is very similar to that for imported goods which infringe registered trade mark rights. Find out more about the steps in lodging a Notice of Objection with Australian Customs »