Copyright in Australia is governed by the Copyright Act 1968 (Cth) (“the Act”). Copyright is defined in the Act as the exclusive right to copy, or allow to be copied under license, particular work,[1] subject to limited exceptions. This work includes original literary works such as blogs, articles, books and even computer code, as well as dramatic, musical and other artistic works which can include logos, paintings, drawings and more.[2] Copyright automatically exists at the creation of a piece of original work, and it exists even in unpublished works.
Ownership of Copyright
In terms of ownership of copyright, the Act sets out who owns copyright in the absence of any agreement. Generally speaking, an author of a piece of work is the owner of the copyright. However, in certain circumstances, for example where an author is engaged/employed by another person to make the work, the other person remains the owner of any copyright.[3]
The Act gives an owner of copyright material the exclusive right to reproduce, publish, communicate to the public artistic work and to do the same for literary, dramatic or musical work with the addition of performing and making adaptations. Owners in some cases are also afforded the right to enter into commercial rental agreements for work reproduced in a sound recording or for computer programs.[4]
In the event that a party performs any of the above acts without the copyright owner’s permission, this may give rise to a claim for copyright infringement. According to the Act, copyright subsists for 70 years after the death of the copyright owner[5] or, if the work had not been published, performed in public, broadcasted or records exposed to the public for sale, copyright lasts for 70 years from the date that the earliest of the above events occurs.[6]
In practice, as copyright cannot be registered, in order to preserve their copyright interest, copyright owners often take steps to record the date their copyright interest arose. Such steps include to deposit their works with their solicitor’s office and have it date stamped, to post or email a copy of the works to themselves and/or swear a statutory declaration stating the basis of ownership and date of creation
Exceptions to Copyright
Division 3 of the Act outlines certain acts that do not constitute infringements of copyright in works. These include (non-exhaustively) for the purposes of:
- research or study;
- criticism or review;
- parody or satire;
- reporting news.
If you can make an argument for any of the above, then you may not need permission from the copyright owner to reproduce the works. However, it is important to note that each of the above exceptions are multi-faceted and the courts will look to various factors in ascertaining infringement. For example, in a defence of fair dealing for criticism or review, a potential infringers motivation is also a consideration. In the well-known and often cited Federal Court case of TCN Channel Nine Pty Ltd v Network Ten Pty Ltd [2002] FCAFC 146 the Court identified principles relating to fair dealing for criticism and review including:
“…an oblique or hidden motive may disqualify reliance upon criticism and review, particularly where the copyright infringer is a trade rival who uses the copyright subject matter for its own benefit or in a dissembling way…”
Citing your Source
While copyright protects the economic interests of authors, there is a section of the Act called “Moral rights of performers and of authors of literary, dramatic, musical or artistic works and cinematograph films” which gives moral rights to individual creators of particular work to protect their reputation and integrity.[7] The moral rights which attach in relation to an individual author are personal and cannot be sold and include: a right of attribution of authorship[8]; or a right not to have authorship falsely attributed[9]; or a right of integrity of authorship.[10] Corresponding rights apply to performers.
This means that if you publish particular work by another author then the author of the work has a right of attribution of authorship in respect of the work. This right exists even if the author is not the owner of the copyright for example if a writer is employed by a media outlet who owns copyright, the writer will still own the moral rights as mentioned above.
It is often the case that works are published with ‘credit’ noted. It is crucial to understand that simply by attributing work, you are not evading infringement of copyright.
International
The international implications of copyright should also be considered before publishing work in countries other than Australia. Australia is party to international treaties on copyright protection.[11] Generally speaking, under these treaties, member countries have minimum requirements in regard to copyright protection and if an owner has copyright in Australia this will be respected in another member country. It is advisable to research prior to publishing in a country, whether it is a signatory to an international treaty and what its requirements are to protect works.
Summary
Although it is not a requirement to register copyright, certain precautions can be taken to further protect yourself. Further, it is important to seek specialist advice if you believe your copyright or moral rights are being infringed, or if you are concerned that you may be infringing, or at risk of infringing, another person’s copyright or moral rights.
If you require advice or assistance with your literary, dramatic, musical or artistic work, contact the experienced team at Miller Sockhill Lawyers on 07 5444 4750 and one of our friendly team members can answer any questions you might have.
The content of this article is current at the date of publishing and is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
[1] Copyright Act 1968 (Cth) s31.
[2] Copyright Act 1968 (Cth) s10.
[3] Copyright Act 1968 (Cth) s35(6).
[4] Copyright Act 1968 (Cth) s31(1).
[5] Copyright Act 1968 (Cth) s33(2).
[6] Copyright Act 1968 (Cth) s33(3).
[7] Copyright Act 1968 (Cth) Part IX.
[8] Copyright Act 1968 (Cth) s193(a).
[9] Copyright Act 1968 (Cth) s195AC(1).
[10] Copyright Act 1968 (Cth) s195AI(1).
[11] Including: The Berne Convention for the Protection of Literary and Artistic Works, opened for signature 24 July 1971, [1978] ATS 5 (entered into force 15 December 1972).