Copyright fact sheet

What is copyright?

Copyright is a form of legal protection, granted under the Copyright Act 1968, to the creators of original material, such as literary, artistic, musical and dramatic works, and to the makers of films, audio recordings, published editions and broadcasts. Copyright provides you with the exclusive legal right to control the reproduction and distribution of your creations, within the limits and exceptions set out in the Copyright Act. This complex area of legislation aims to balance the economic and moral rights of copyright owners, with the general public’s need to access and use copyright materials.

Copyright protects the expression of ideas, rather than the ideas themselves. The creativity it protects is in the choice and arrangement of the elements that express the idea, such as words, musical notes, colours or shapes. The work must be created in material form for it to be protected by copyright. For example, if you wrote a play, took a photograph, composed some music or directed a film, your work would automatically be protected by copyright from the time it took a fixed external form, whether on paper or digitally.

What types of things does copyright protect?

Literary, artistic, musical and dramatic works need to be original, in the sense of originating with the author and not being simple copies, but can be similar to other works. It is even possible to own copyright in a work that infringes someone else’s copyright, if the later work also includes original material.

Literary works include completely functional writings, such as business letters, instructions and computer software. Artistic works include functional drawings, such as engineering drawings and maps, as well as some three dimensional objects, such as sculptures, ‘works of artistic craftsmanship’ (such as jewellery and tapestry) and buildings. Most three-dimensional objects are not protected by copyright, but graphics on their surface or the design drawings for them may be.

How is ownership of copyright determined?

The author of a literary, dramatic, musical or artistic work is normally the first copyright owner. However, copyright in a work made by an employee in the course of their employment is owned by the employer, unless there is an express or implied agreement that the employee will own the copyright.

There is a common but incorrect belief that if a customer pays for a copyright work to be created, the customer automatically owns the copyright in it. In fact, it is necessary to have either a written assignment of the copyright to the customer, or an agreement to assign it (for example, after the fee has been paid). In most other cases, the customer will only have a licence to make use of the work, and it may not be clear what possible uses are included in the licence, or whether the copyright owner can grant other licences.

Ownership of films, sound recordings and broadcasts is more complex, but in substance, the owner is the entity responsible for the making of the material. Where there is more than one type of copyright in material, each type may have a different owner.

In the case of a song, the person who wrote the words owns copyright in them, and the person who wrote the music owns copyright in it. Copyright in the sound recording of the song is owned by the recording company, unless it was made for payment on behalf of another person. The owner of the radio station owns copyright in the sound broadcast of the recorded song.

Do I have to register my copyright?

In Australia, copyright protection is automatic upon creation of the types of material described above, and there is no copyright register.

Transfer of copyright

Copyright can be transferred from the initial owner to another person by a written document signed by the person assigning the copyright. All or only some of the rights (such as the rights for a particular country, or for a single medium) can be transferred. It is possible to assign the copyright in a work the author has not yet created.

How long will my copyright be protected?

Copyright protection for published literary, artistic, musical and dramatic works by authors who are still alive, or died after 31 December 1954, lasts for 70 years after the death of the author. Different terms of copyright apply to works by authors who died before this date, unpublished works, photographs and other copyright materials, including films, audio recordings, published editions and broadcasts.

How should I mark my copyright? What about the © symbol?

There is no set form of words for a copyright notice, but it should include the name of the copyright owner and the year and place of first publication. Such a notice may state: This work is copyright Phillips Ormonde Fitzpatrick, Melbourne, 2016. Apart from any use permitted under the Copyright Act 1968, this work or a substantial part of it may not be reproduced by any process, nor may any other exclusive right be exercised, without the permission of Phillips Ormonde Fitzpatrick.

A shorter alternative is: © Phillips Ormonde Fitzpatrick, Melbourne, 2016. All rights reserved.

It is an offence under the Copyright Act to make a false copyright statement.

Are the rules different online?

There are no special rules for the online environment. Material posted on social media or other websites, including photographs, artwork and videos, is likely to be protected by copyright. One exception is a very short post, which is especially an issue on Twitter, with a 140 character limit for tweets. The song title The Man who Broke the Bank at Monte Carlo (44 characters, including spaces) has been held to be too insubstantial for copyright protection. Whether there is copyright in a tweet or a short post on another platform, depends on whether it has been copied from something else and whether it needed some minimal level of literary skill, as well as on its length.

Infringement of copyright

If you do any of the things that are exclusive rights of the copyright owner without the owner’s consent, you will infringe copyright, unless one of the exceptions set out in the Copyright Act applies. These exclusive rights include the right to reproduce the whole or a substantial part of the material, the right to perform it in public, the right to communicate it to the public online, and the right to broadcast it. In some circumstances, importing and selling copyright material without the owner’s permission infringes copyright. You can also infringe copyright by authorising someone else to do an infringing act.

Exceptions to infringement

Australia’s copyright law (unlike that of the USA) does not include a general defence to copyright infringement that a person’s use of the work was fair or for a purpose that should not be illegal. Instead, the Copyright Act sets out a number of specific circumstances in which reproducing a substantial part of a work does not infringe copyright. These provisions are complex, and have not kept up with technological change. They include:

• Fair dealing for research, study, criticism or review.
• Fair dealing for satire or parody.
• Format shifting (of literary works and sound recordings) and time shifting (of radio and television broadcasts) for private use.
• Copying by libraries and educational institutions.
• Making a picture, photograph, film or television broadcast of a building, or of a sculpture that is in a public place.

International copyright protection

Australia, like almost all commercially significant countries, is a signatory to the Berne Convention. This convention requires each member state to extend its copyright protection (i.e. the copyright protection it grants to local works) to works created in the other member states. For example, a book by an English resident that is first published in England is protected against infringement in Australia by Australian copyright law. This is as if the book had been written by an Australian resident and first published in Australia. As a result, a book may be out of copyright in Australia but still in copyright in the UK due to differences in the duration of copyright protection.