- Copyright is a specialised and complex area of the law. Statutory protection is provided pursuant to the Copyright Act 1968 (Cth).
- Copyright exists in the expression of ideas, rather than the ideas behind the work itself. For copyright to subsist in a work it must be written down or otherwise recorded, including electronically; and original, in the sense that the work is not copied from another source and required some skill and effort to express.
- While works are required to exhibit some form of skill to produce, it is not necessary for the work to have any specific aesthetic quality.
What Types of Works Attract Copyright?
- Copyright protection subsists in literary, musical, artistic and dramatic works; and published editions, cinematograph films, sound recordings and broadcasts.
- Literary works include far more than the traditional literary poems and novels created by authors. The courts have held that literary works can include computer programs, prize scales for poker games, instruction manuals, newspaper articles, examination papers, betting forms, instructions on seed packets, customer lists and data bases and product catalogues
- Artistic works can include artist’s paintings, sculptures and prints, but also includes diagrams, maps, charts, models, casts, photocopies and design drawings.
Who Owns Copyright?
- Copyright does not require registration. The author of a work automatically has copyright in a work once it's created.
- The Copyright Act states that for literary, literary, musical, artistic and dramatic works the author who first creates the work owns copyright in their works. Copyright in sound recordings, cinematograph films and broadcasts are owned by the first maker of the work.
- Ownership may be affected where a work is commissioned, or where the work is produced as an employee. In some circumstances copyright in these works may be owned by the commissioner or the employer.
- Ownership may be affected if it has been transferred to another person. The Act states that any transfer of copyright must be in writing and signed by the author or copyright owner for an effective transfer to occur.
How Long Does Copyright Last?
- Copyright lasts for different periods of time depending on the type of material, but generally lasts 70 years after the end of the year of the author’s death, or where a work is published anonymously, 70 years from the date of first publication. For sound recordings, broadcasting, films and other recordings, copyright lasts for 70 years after the date of first publication.
What Rights Do Copyright Owners Have?
- The copyright owner has a number of economic rights in their work. The economic rights an owner has is dependent upon the type of work. However, these rights do include: the right to reproduce the work in material form, publish the work, perform the work, communicate the work to the public, make an adaption of the work, control rental of copies of the work and dissemination of the work.
- Generally speaking, if a person other than the copyright owner does any of these things in relation to a work, then they may infringe the owner’s copyright.
- In order to infringe copyright, an infringer must exercise the copyright owner’s rights with respect to a substantial part of the work. When determining what constitutes a substantial part, the courts have held that it is a matter of quality rather than quantity. This means that taking even a very small part of a work represent a substantial part of the work, and therefore infringe the copyright owner’s rights.
Assignments and Licensing
- Copyright comprises many valuable economic rights. The copyright owner may assign or license these rights either in full or in part to other parties. Rights may be licensed or assigned either exclusively for unrestricted use, or non-exclusively with conditions as to use.
- The Designs Act 2000 (Cth) provides a system for the protection of designs through registration.
- A significant overlap exists between registered designs and copyright in relation to three-dimensional artistic works.
- Copyright protection is generally preferred to design registration because:
(a) copyright protection does not require registration; and
(b) the term of copyright protection (the author’s life time plus 70 years) is longer than that of a registered design (14 years).
- However, section 77 of the Copyright Act (one of its most complicated sections) creates an exception for some three-dimensional works.
- Section 77 states that, where a corresponding design for an artistic work (the work’s visual features of shape or configuration embodied in a three-dimensional product) has been registered as a design, reproducing that corresponding design will not infringe the artistic work’s copyright.
- Section 77 also provides that reproducing a corresponding design of an artistic work which has been:
(a) applied to either a commercially produced article or more than 50 articles;
(b) sold, hired or offered for sale;
(c) does not infringe copyright in that work.