How to Copyright, Copyright Law, Intellectual Property, Business Copyright Ideas
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Do you know How to Copyright? What is Copyright or Copyright Law?
A clear distinction exists between the Copyright in a work and the ownership
of the physical article in which the work exists.
For example, an author may own the copyright in the text in a book even though the physical copy of the book will be owned by the person who purchases it. Similarly, the purchaser of an original painting does not have the right to make copies of it without the permission of the owner of copyright: the right of reproduction remains with the copyright owner who is generally the artist.
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A clear distinction exists between the copyright in a work and the ownership of
the physical article in which the work exists.
Business Copyright or Copyright Law is a set of exclusive rights that
regulate the use of a particular expression of an idea or information.
At its most general, it is literally "the rights to copy" an original creation. In most cases, these rights are of limited duration. The symbol for copyright is "©". The letter C inside parentheses ("(c)"), although a common practice, has never been a legally recognized designator.
Business Copyright is a type of legal protection for people who express ideas and information in certain forms. The most common forms are: computer programs, writing, visual images, music and moving images. It protects the form or way an idea or information is expressed, not the idea or information itself.
Copyright Law may subsist in a wide range of creative, intellectual, or artistic forms or "works" (e.g. books, movies, music, paintings, photographs, and software) and give a copyright holder the exclusive right to control reproduction or adaptation of such works for a certain period of time (historically a period of between 10 and 30 years depending on jurisdiction, more recently the life of the author plus several decades).
These artistic forms or "works" include poems, theses, plays, and other literary
works, movies, choreographic works (dances, ballets, etc.), musical compositions,
audio recordings, paintings, drawings, sculptures, photographs, software, radio
and television broadcasts of live and other performances, and, in some jurisdictions,
industrial designs. Designs or industrial designs may have separate or overlapping
laws applied to them in some jurisdictions. Copyright is one of the laws covered
by the umbrella term intellectual property.
Copyright Law covers only the form or manner in which ideas or information have been manifested, the "form of material expression." It is not designed or intended to cover the actual idea, concepts, facts, styles, or techniques which may be embodied in or represented by the copyright work.
For example, the Copyright which subsists in relation to a Mickey Mouse cartoon prohibits unauthorized parties from distributing copies of the cartoon or creating derivative works which copy or mimic Disney's particular anthropomorphic mouse, but does not prohibit the creation of artistic works about anthropomorphic mice in general, so long as they are sufficiently different to not be deemed imitative of the original. In many jurisdictions, Copyright Law provides scope for satirical or interpretive works which themselves may be copyrighted. Other laws may impose legal restrictions on reproduction or use where copyright does not - such as trademarks and patents.
Copyright Laws are standardized through international conventions such as the Berne Convention in some countries and are required by international organizations such as European Union or World Trade Organization from their member states.
What is Copyright?
Copyright is a type of property that is founded on a person's creative skill and labour. It is designed to prevent the unauthorized use by others of a work, that is, the original form in which an idea or information has been expressed by the creator.
Copyright is not a tangible thing. It is made up of a bundle of exclusive economic rights to do certain acts with an original work or other copyright subject-matter. These rights include the right to copy, publish, communicate (eg broadcast, make available on-line) and publicly perform the copyright material.
Copyright creators also have a number of non-economic rights. These are known as moral rights. This term derives from the French droit moral. Moral rights recognized in Australia are the right of integrity of authorship, the right of attribution of authorship and the right against false attribution of authorship.
Copyright is distinct from physical property...
A clear distinction exists between the copyright in a work and the ownership of the physical article in which the work exists. For example, an author may own the copyright in the text in a book even though the physical copy of the book will be owned by the person who purchases it. Similarly, the purchaser of an original painting does not have the right to make copies of it without the permission of the owner of copyright: the right of reproduction remains with the copyright owner who is generally the artist.
Another example is that merely purchasing a physical copy of a CD does not grant the purchaser a right to further reproduce the sound recording embodied in the CD (or to make it available on-line) without the permission of the owner of the copyright in the sound recording.
What is Intellectual Property?
Copyright is part of an area of law known as Intellectual Property. Intellectual Property law protects the property rights in creative and inventive endeavors and gives creators and inventors certain exclusive economic rights, generally for a limited time, to deal with their creative works or inventions.
This legal protection is designed as a reward to creators to encourage further intellectual creativity and innovation, as well as enabling access by the community to the products of intellectual property. Because Intellectual Property protects rights, rather than physical property, Intellectual Property is an intangible form of property. It is property which cannot be seen or touched.
Intellectual Property is the general name given to the laws covering patents, trade marks, designs, circuit layouts, plant breeder's rights and copyright. Each of these forms of Intellectual Property is protected by a specific Act of the Commonwealth Parliament. The framework for these Acts is largely based on Australia's obligations under international treaties.
The Circuit Layouts Act 1989 protects the layout-designs of integrated circuits (also referred to as computer chip designs or semi-conductor chips).
The Act 1989 protects plans which show the three-dimensional location of the electronic components of an integrated circuit and gives the owner of the plans certain rights, including the right to make an integrated circuit from the plans. There is no requirement for registration for the granting of rights to the owner of a layout.
The Patents Act 1990 grants monopoly rights to inventors of new inventions such as improved products or devices, substances and methods or industrial processes, provided that the invention is a manner of manufacture, is new, is not obvious and is useful.
A registered patent provides exclusive rights to the owner to exploit the invention for the life of the patent, which is 20 years. The innovation patent provides protection for incremental and lower level inventions for a period of 8 years.
The Trade Marks Act 1995 grants protection to a letter, word, phrase, sound, smell, shape, logo, picture, aspect of packaging or combination of these, used by traders on their goods and services to indicate their origin and to distinguish such goods and services from those of other traders.
Initial registration lasts for 10 years, with the possibility for further renewals for as long as the mark is used.
The Designs Act 2003 grants protection to the visual appearance or design of a manufactured article if it is new or original. It protects the features of shape, pattern or ornamentation applied to an article. Protection is based on a system of registration and can last for up to 16 years. (It has been proposed that the period of designs protection be reduced to 10 years).
Some designs for articles may qualify for both designs and copyright protection. Before registering a design of an artistic work under the Designs Act, you should seek legal advice on whether registration would affect copyright protection of any articles related to the design.
Plant Breeder's Rights
Plant breeder's rights are exclusive commercial rights to market a new plant variety or its reproductive material.
The rights are administered under the Plant Breeder's Rights Act 1994. Holders of plant breeder's rights have exclusive rights over the production, sale and distribution of the new variety.
Registration of patents, trade marks, designs and plant breeder's rights
Protection for patents, trade marks, designs and plant breeder's rights is dependent upon a formal registration procedure conducted by the central or regional offices of IP Australia.
IP Australia is the government agency which administers the Patents Act 1990, Trade Marks Act 1995, Designs Act 2003 and the Plant Breeder's Rights Act 1994.
Confidential information and passing off
Other categories of Intellectual Property which do not have special statutory protection include confidential information and trade secrets. These are protected by the action for breach of confidence.
The business reputation and goodwill in unregistered trade marks or trade names may be protected by the common law action of passing off or an action for misleading or deceptive conduct under the Trade Practices Act 1974 or equivalent State or Territory legislation.
What law governs copyright in Australia?
Copyright Act 1968
Copyright Law exists in works and other subject-matter by virtue of the Copyright Act 1968 (the Copyright Act). The only exception to this is in relation to certain limited prerogative rights of the Crown in respect of copyright in Acts of Parliament.
The Copyright Regulations 1969, the Copyright Tribunal (Procedure) Regulations 1969 and the Copyright (International Protection) Regulations 1969 specify matters related to the operation of the Copyright Act.
Access to the law
The Copyright Act and Regulations are constantly under review and are amended from time to time. Access to electronic versions of Commonwealth legislation is available through the Attorney-General's Department's legal information retrieval system, ComLaw.
What does copyright protect?
The Copyright Act protects original literary, dramatic, musical and artistic works. In order for copyright to subsist in a work it must be made by a resident or citizen of Australia, or made or first published in Australia, or has a specified connection with a country which is a member of a relevant international copyright treaty. (See section 14 for more information about the protection of overseas works in Australia).
Most materials that are reduced to writing or some other material form by a creator and which are not trivial in content are literary or dramatic works. Such works may be in electronic or hard copy form. Such works include letters, e-mails, articles, novels, poetry, song lyrics, timetables, databases and computer programs. No level of literary merit is required for copyright to subsist in a work. However, single words, slogans or titles are not usually protected as literary works.
Artistic works include paintings, photographs, sculptures, engravings, sketches, blueprints, drawings, plans, maps and buildings or models of buildings, irrespective of the artistic quality of the work. They may exist in electronic or hard-copy form. There is also a category called 'work of artistic craftsmanship' that must satisfy the added criteria of aesthetic appeal and be the result of the work of a skilled crafts person in order for it to be protected by copyright. Items such as hand-woven tapestry, handmade jewelery or crafted furniture may fit into this category.
Works must be 'original'
Works are only protected by copyright law if they are 'original' works. A copyright work will be considered original if it is the product of the creator's own intellectual effort and has not been copied from another person's work. However an original work could be a compilation of other works, eg in an original anthology or selection, where the permission of the copyright owners of those individual works compiled would be needed.
Copyright in subject-matter other than works
The Copyright Act also protects sound recordings, films (which include prerecorded television programs and videos), radio and television broadcasts and published editions of works. These categories of copyright material are collectively referred to as 'subject-matter other than works'.
The copyright in each type of work or other subject-matter has independent existence. For example, for a film broadcast on television, separate copyright may subsist in the film itself, the broadcast of the film, the underlying script and any sound recording which is part of the film. Different copyright owners may own each of these different kinds of copyright. Similarly, for a compact disc, there may be a separate copyright in the lyrics, the composition and arrangement of the music and the sound recording of the work.
No copyright in ideas or information
Copyright does not protect ideas or information as such but only the original expression of ideas or information. Copyright differs fundamentally from patents, trade marks and designs in this way. For example, unlike the grant of a patent, which gives monopoly rights over the idea of an invention, the creation of a copyright work does not grant a monopoly over the ideas or information expressed in the work. Rather, rights are granted to the copyright owner in respect of the reproduction (and certain other uses) of that particular expression of ideas or information which has been fixed in a material form.
Copyright, therefore, does not prevent the use of the same idea or information. If two people independently create similar works based on the same idea or information, and neither is a copy of the other work, there is no issue of copyright infringement. For example, two artists may set up canvasses in the same spot and paint the same waterfall. Both artists would have copyright in their works and there would be no infringement of copyright providing the artists do not copy each other's painting.
How do you obtain copyright protection?
No formalities - including no registration
The Copyright Act does not require the completion of formalities (such as publication, registration or the payment of fees) in order to obtain protection in Australia, or any other country which is also a party to an international copyright treaty. This is unlike the position with patents, trade marks, designs and plant breeder's rights where registration is a precondition to protection. Copyright protection is granted automatically from the time an original work is created.
Although Copyright protection in Australia is not dependent upon formal notice, it is best practice and advisable for copyright owners to place a copyright notice in a prominent place on their work. There is no set form of words for a copyright notice, but such a notice may state:
This work is copyright. Apart from any use permitted under the Copyright Act 1968, no part may be reproduced by any process, nor may any other exclusive right be exercised, without the permission of (name and address of copyright owner and the year in which the work was made).
It is sensible for copyright owners to regard their copyright as an item of property and to deal with it in a business-like way. Copyright owners should always keep dated copies of their works (for example, manuscripts and tapes) and copies of any letters submitting their work to others. No document dealing with copyright should be signed unless its contents are fully understood.
Copyright owners of material in electronic form may also wish to attach electronic rights management information to their work or other subject-matter. The removal or alteration of this material is prohibited by the Copyright Act in certain circumstances. Copyright owners of material in electronic form can also protect their material by technologies such as password protection or software locks. The Copyright Act also prohibits the making and dealing in devices and services used to circumvent such protection in certain circumstances.
Who is a copyright owner?
Usually the creator of a literary, dramatic, musical or artistic work is the first owner of the copyright in it, but there are several exceptions. One important exception is that copyrights in works made during the course of employment are owned by the employer and not the employee. All copyright ownership rules (except those that relate to moral rights) may be varied by agreement.
Certain commissioned works
In the case of certain artistic works, including engravings and painted or drawn portraits that are made under commission, the person commissioning the work is the first copyright owner, subject to any agreement to the contrary. However, if the person commissioning the work informs the artist of the purpose for which the work is required then the artist can legally restrain the use of the work for any other purpose.
In the case of commissioned photographs, the photographer is the copyright owner, subject to any agreement to the contrary. Where the commissioned photographs are of a private or domestic nature, the commissioning party owns the copyright, subject to any agreement to the contrary.
Sound recordings and films
The owner of any copyright in a sound recording or a film is normally the person/s who made it. The 'maker' of a sound recording is the owner of the master recording, but where the recording is of a live performance, the performers are also 'makers'. The 'maker' of a film is the person who undertook the arrangements necessary for the making of the film. However, for commissioned sound recordings and films, the default position is that the copyright is owned by the commissioning party.
The rules for first ownership of copyright in sound recordings and films can, as in the case of works, be varied by contract. For instance, a recording contract between a performing artist and a record company may include assignment of some or all of the artist's share of copyright in the recordings made under the contract to the company. In the case of sound recordings of performances made before 1 January 2005, special rules apply regarding the performer's rights and legal advice should be obtained.
Other ownership rules
Special provisions in the Copyright Act provide for the ownership of copyright in radio and television broadcasts, publishers' copyright in editions of works (ie. the typesetting and layout), material published by international organizations and material made before the Copyright Act came into operation.
The Commonwealth and State or Territory governments own the copyright in materials which are made or first published under their direction or control.
What are the rights of a copyright owner?
The Copyright Act gives copyright owners a number of exclusive economic rights. These exclusive rights vary according to the different types of works and other subject-matter protected by copyright.
Literary, dramatic or musical works
The owner of copyright in a literary, dramatic or musical work has the following exclusive rights:
to reproduce the work in a material form (which includes making a sound recording
or film of the work or including a substantial portion of the work in a database)
to publish the work (that is, to make copies of the work available to the public
for the first time) to perform the work in public
to communicate the work to the public (which includes the electronic transmission
of the work such as a broadcast, and making the work available on-line)
to make an adaptation of the work (which includes an arrangement of a musical work
and a dramatization or translation of a literary work), and
- in the case of computer programs, and works recorded in sound recordings, to commercially rent the sound recording or computer program.
The owner of copyright in an artistic work has the following exclusive rights:
to reproduce the work in a material form (which includes reproducing a two-dimensional
work in a three-dimensional form and vice versa)
to publish the work, and
- to communicate the work to the public (which includes the electronic transmission of the work such as a broadcast, and making the work available on-line).
The owner of copyright in a film or sound recording has the following exclusive rights:
to copy it
to cause it to be heard or seen in public
to communicate the material to the public (which includes electronic transmission
and making the film or sound recording available on-line), and
- in the case of a sound recording, to commercially rent it.
The owner of copyright in a radio or television broadcast has the exclusive right to make a sound recording, film or photograph of it, to re-broadcast it, or to communicate it to the public (otherwise than by re-broadcasting it, eg. Internet streaming).
Licensing of rights
Copyright owners may exercise any of the above rights themselves or may give permission to other people to do so. Such permission is referred to as a licence. Copyright owners may grant a licence that is subject to certain conditions such as the payment of a fee or royalty or limit the licence as to time, place or purpose.
The Copyright Act also provides creators with certain non-economic rights known as moral rights. They are the right of attribution of authorship of one's work, (the right to be named in connection with one's work) the right against false attribution of authorship and the right of integrity of authorship (the right to object to treatment of one's work that has a detrimental effect on one's reputation).
Moral rights apply to all works and films (and works as included in films) that were in existence and still in copyright on 21 December 2000 and all works and films (but not sound recordings) created after that date.
An author's right of integrity of authorship in respect of a film is limited to the author's lifetime. In all other cases, moral rights endure for the term of copyright.
Due to the personal nature of moral rights, they may not be assigned (ie given away to another) or licensed. It is, however, possible for an author to provide a written consent in relation to certain treatment of his or her work that might otherwise constitute an infringement of moral rights.
A range of remedies are available for an infringement of moral rights. These include an order for damages, an injunction or a public apology. The Copyright Act provides a general reasonableness defense to actions for infringement of the right of integrity of authorship and the right of attribution of authorship. It also provides specific defenses to actions for infringement of the right of integrity of authorship in relation to certain treatment of buildings and movable artistic works.
How long does copyright last?
Literary, dramatic or musical works
The duration of copyright protection is dependent on a number of factors, including the nature of the work, the time when it was made and whether it has been published. The duration of protection for copyright works that have been published (or otherwise made available to the public) generally lasts for 70 years after the death of the creator. There are some exceptions to this general rule.
Copyright subsists indefinitely in a literary, dramatic or musical work that has not been published, performed in public, broadcast or sold as a recording during the life of the author. If the work is posthumously made public in any of those ways, the copyright will terminate at the end of 70 years after that event.
In the case of artistic works, other than engravings, copyright protection also lasts for 70 years after the end of the year in which the artist dies whether or not it has been published. The term of copyright in an engraving is similar to that for a literary work, so that copyright subsists in an engraving that is unpublished at the author's death until 70 years after publication or otherwise indefinitely.
The term of copyright protection for photographs taken before 1955, regardless of whether the author has since died or is still alive, has expired. The life plus 70 years term for artistic works applies to all photographs taken after that time.
The duration of copyright protection for sound recordings made after 1954 and films (made after 1 May 1969) is generally 70 years from the end of the year of first publication. If the film or sound recording is unpublished, the protection period is indefinite until it is published.
The duration of copyright in radio and television broadcasts is 50 years from the making of the broadcast.
Copyright in the published editions of works lasts for 25 years from the year of first publication of the edition.
The Copyright Act has specific provisions which clarify the duration of copyright protection for works of joint authorship (SS 80 81), anonymous and pseudonymous works (s 34), works in which the Government owns copyright (SS 180 181), foreign works and works made by international organizations (Part VIII).
Copyright protection that had already expired before the date of commencement of the present Act (that is 1 May 1969) cannot be revived. However, the provisions of earlier copyright legislation are still relevant in relation to works in copyright immediately before the commencement of the present Act.
When is copyright infringed?
Exercise of exclusive rights
The copyright in any work or other subject-matter is infringed when any act which the copyright owner has the exclusive right to do is done by a person in Australia who is not the copyright owner (or his or her licensee).
Examples include when a work is published, reproduced or performed in public without the copyright owner's permission. This general rule is subject to a number of specific exceptions in the Copyright Act.
Authorizing an infringement
The copyright in any work or other subject-matter is also infringed when any act which the copyright owner has the exclusive right to do is authorized to be done by a person in Australia who is not the copyright owner (or his or her licensee).
For example, a person could be taken to have authorized a copyright infringement if they provide access to a photocopier and expressly or impliedly permit someone else to make infringing copies on it.
It is not necessary for an entire work to be reproduced or for more than one reproduction to be made for an infringement of copyright to occur. An infringement of copyright occurs so long as a substantial portion of a work or subject-matter has been reproduced or other copyright use is made of it (eg. it is communicated to the public).
The test for what is a substantial portion is often a qualitative rather than a quantitative test. It is the quality or essence of what has been taken rather than the amount that is taken that will often determine whether the portion taken is 'substantial'.
What about photocopying?
Photocopying a literary, artistic, dramatic or musical work is one of the more common ways of infringing copyright in works as it involves reproduction of the work. A large number of authors and publishers are members of a copyright collecting body called Copyright Agency Limited (CAL). CAL is authorized to collect royalties for the photocopying of these works. A licence from CAL can be obtained for the photocopying of published literary works. (The address of CAL is at paragraph 18.8 of this booklet.) Alternatively, the permission of the author or publisher should be sought.
Importation and commercial dealings
The Copyright Act also makes certain other acts an indirect infringement of copyright. It is an infringement of copyright to import copyright infringing articles (ie. pirate goods) into Australia for trade purposes. Commercial dealings with infringing or pirate articles also constitute an infringement of copyright. Infringing or pirate articles are items such as copies of music CDs and computer games that are made without legal authority or consent from the owner of the copyright material in them. There are also restrictions on importation of certain legitimate copyright goods into Australia without the permission of the copyright owner ('parallel importation').
Importation of books
The commercial importation of legitimate copies of books is permitted in certain circumstances. For example, books which are not published in Australia within 30 days of their first publication overseas can be imported without the permission of the copyright owner in the literary work or published edition. A person wishing to import books commercially without the permission of the copyright owner should seek legal advice before doing so.
Importation of sound recordings
The commercial importation of legitimate copies of sound recordings (including CDs and records) is generally not an infringement of copyright. However, if the copies were made without the consent of the copyright owner (ie they are pirate copies), the importation of those copies will infringe copyright. A person wishing to import CDs or records commercially without the permission of the copyright owner should first seek legal advice.
Sound recordings commonly record musical works which themselves have a copyright separate to the copyright in the recording. If the copyright in a musical work is infringed by the making of a copy, the importation will also infringe copyright in the musical work.
Importation of Computer Programs and e-Books and e-Journals
The commercial importation of legitimate (ie non-pirated) copies of computer software or electronic books (including collections of works), electronic journals and electronic sheet music into Australia without the permission of the Australian copyright owner is generally not an infringement of copyright. The imported copy must have been made with the permission of the copyright owner in the country of manufacture.
If the physical item or medium embodying the works in electronic form (eg a CD-ROM or DVD) includes a film or television program of more than 20 minutes duration, it cannot be parallel imported.
Note that downloading of copyright materials by computer from an overseas Internet site, which does not involve the bringing of a physical item or medium into Australia, is not parallel importation. Downloading is an exercise of the reproduction or copying right of the owner of copyright in the materials concerned.
Place of public entertainment
It is an infringement of copyright to permit a place of public entertainment to be used for an infringing public performance of a literary, dramatic or musical work.
Circumvention devices and services
The Copyright Act provides civil remedies and criminal sanctions against the manufacture, importation and commercial dealing in devices and services designed to circumvent a technological protection measure (TPM). TPMs include items such as a software lock or password protection measure.
There are also remedies and sanctions against the manufacture of, and dealing in broadcast decoding devices (a device which permits unauthorized access to an encoded broadcast). The law relating to circumvention devices is currently under review. Amended provisions operate from 1 January 2007.
Electronic Rights Management Information
The Copyright Act provides civil remedies and criminal sanctions against the removal of electronic rights management information (ERMI). There are also remedies and sanctions against commercial dealing in copyright material where ERMI has been removed if the person knows this was done without lawful authority.
ERMI is information (or numbers or codes that represent the information) attached to or embodied in copyright material that identifies the work or other subject-matter, identifies the copyright owner, or contains any terms or conditions imposed on use of the copyright material. The definition of ERMI includes information that is separate from, but appears in connection with, or has at some point in time appeared in connection with, a copy of the work or other subject-matter.
Are there any exceptions to infringement?
So as to balance the rights of copyright owners with the needs of the public to have access to copyright materials, the Copyright Act provides a number of exceptions to the general rules regarding infringement of copyright.
There are a range of exceptions that enable the exercise of certain copyright rights without constituting copyright infringement. They may be raised in answer to a claim of infringement. The most important of these exceptions permits 'fair dealing' for certain specified purposes. A fair dealing with a copyright work, sound recording, film or broadcast will not amount to an infringement of copyright if done for the following purposes:
research or study
criticism or review
the reporting of news, or
- the giving of professional advice by a lawyer or a patent or trade marks attorney.
Whether an exercise of copyright rights amounts to a fair dealing is a matter to be determined on the facts of each case. Many factors may be taken into account. In the case of reproduction for research or study the factors include: the purpose and character of the use, the nature of the work or other subject-matter, the amount and substantially of the portion copied, the possibility of obtaining the work within a reasonable time at an ordinary commercial price and the effect on the commercial value of the work or other subject-matter.
No general exception for private copying
It should be noted that the fair dealing exceptions to copyright infringement do not provide a general exception for private or domestic copying of copyright material. The dealing must be for one of the specified purposes.
The 10 per cent rule
In the case of fair dealing copying for the purposes of research or study the Copyright Act specifically provides that it is a fair dealing to make a single copy of a journal article, one chapter or 10 per cent of a book of ten or more pages, or 10 per cent of the number of words in a work that is in electronic form.
There are also exceptions to infringement in the Copyright Act that are specific to certain works. The following acts are permitted:
the making of a copy of a computer program resulting from the process of normal
use of the program or for back-up purposes
the owner of a copy of a computer program decompiling the copy to make an inter-operable
product, to test its security, or to correct an error – if the required information
about the program, or an error-free copy, is not otherwise available
the filming, photographing, drawing or painting of sculptures in public places
the public performance of a literary, dramatic or musical work by playing a television,
radio or record player to residents at guest houses or premises where people reside
or sleep, and
- filming or recording live broadcasts for private and domestic use.
Some exceptions also apply to specific uses or purposes. The main exceptions of this type are:
the temporary reproduction of a work or adaptation made as part of the technical
process of making or receiving a non-infringing communication (this covers reproductions
that occur automatically while browsing on the Internet and in certain types of
anything done for the purpose of a judicial proceeding or the report of a judicial
the temporary reproduction of a work, film or sound recording made as part of the
normal process of using the item, eg. playing a legal CD or a DVD at home or at a
private party and the player makes a temporary copy as part of its normal operation,
- the reproduction or copy of a work (or adaptation of a work) that is contained in a broadcast where the copy is made solely for the purpose of broadcasting the work or adaptation or simulcasting it in digital form.
Copying by libraries and archives
Copying may also be done in certain instances without infringement of copyright when done by libraries and archives for students, researchers, Members of Parliament and for other libraries. Copying of unpublished works and certain audio-visual materials for certain other purposes (eg. publication) may also be done without infringing copyright. Reference should be made to the Copyright Act to determine the precise terms of these, and any other, exceptions to copyright infringement.
Certain educational institutions and institutions assisting persons who have a print or intellectual disability may make multiple reproductions and communications of works for educational purposes or for assisting people who have a disability, under a licence set out in the Copyright Act (a statutory licence). Such statutory licences give the copyright owner a right to be paid equitable remuneration through an approved collecting society.
Educational institutions and institutions assisting people who have a disability may for educational purposes, or for the purpose of assisting people who have a disability, also copy television and radio broadcasts under statutory licences. Again, the licences provide a right for copyright owners to be paid equitable remuneration through an approved collecting society. These licences also extend to communication within the institution by electronic means.
How can copyright rights be enforced?
A copyright owner can approach a person infringing copyright to seek redress. It is best to seek legal advice. Where enforcement is required it is generally done in the court system.
The owner of the copyright in a work or other subject-matter may obtain an injunction to restrain an infringement of copyright occurring or continuing.
A person whose copyright is infringed is entitled to damages as compensation for infringement. In the case of a blatant infringement, or where some particular benefit has accrued to the defendant, punitive damages may be awarded to a copyright owner. In determining the amount of damages for copyright infringement, a court may consider whether the infringement involved converting hard-copy material into digital form, as well as whether a stronger penalty would deter others from committing the same infringement.
Account of Profits
Alternatively, the court may order payment to the owner of copyright of the profit made by the infringer as a result of the infringement.
Where the infringement was deliberate, the Copyright Act also provides for the owner of the copyright in a work or other subject-matter to be in substantially the same position as if he or she owned the infringing copies of the material. Subject to the discretion of the court, there is a provision for a copyright owner to have any infringing copies of the material in the hands of the infringer (including any device used in making the copies) delivered up to him or her.
A notice in writing may be given to the Chief Executive Officer of Customs objecting to the importation of copies of copyright materials suspected to be infringing copies. A person giving such a notice is required to lodge security for enforcement costs. Once a notice is accepted, Customs may seize the copies believed to infringe copyright and hold them for a specified period to enable the giver of the notice to bring infringement proceedings in court. Importers of copies that are non-infringing can counterclaim for damages arising from the infringement proceedings. Contact the Australian Customs Service.
The Copyright Act also contains a number of criminal offense provisions. These include offenses in aid of enforcement regimes for circumvention devices or services; abuse of rights management information and broadcast decoding devices; piracy of books, computer software, sound recordings and films; significant infringements on a commercial scale and other actions that prejudice the economic rights of the copyright right-holder. There are very high penalties. In determining a penalty, a court may impose higher penalties in certain circumstances for offenses involving the conversion of hard copy material into digital form.
Can copyright be bought and sold?
Copyright can be dealt with in the same way as other forms of personal property. It can be assigned, licensed, given away, sold, left by will, or passed on according to the laws relating to intestacy or bankruptcy. This does not apply to moral rights which are personal and which creators cannot transfer or assign. After the creator's death their moral rights are exercisable by the executors of their estate. It is always best to obtain written evidence of permission to use copyright, rather than rely on oral statements.
An assignment of copyright must be in writing and signed by or on behalf of the assignor (ie. the copyright owner) to be legally effective. The assignment may be in whole or part and may be limited to one or more of the exclusive rights or aspects of them and may also be limited as to time or geographical area.
An exclusive licence grants specified rights to the licensee with a guarantee that those rights will be granted to no other person. An exclusive licensee can sue and take certain other actions as though he or she were the copyright owner. Exclusive licences, like assignments, must be in writing and signed.
A non-exclusive licence is a permission to exercise one or more of the copyright owner's rights in a work. It does not result in the copyright owner parting with his or her rights in the work. A copyright owner may grant numerous non-exclusive licences, but can assign any or all of the exclusive rights that comprise his or her copyright only once for the period of that assignment.
Is Australian copyright material protected overseas?
Australia is a party to a number of international copyright treaties and conventions including:
Berne Convention for the Protection of Literary and Artistic Works (Berne Convention)
World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property
Rights (TRIPS Agreement)
International Convention for the Protection of Performers, Producers of Phonograms
and Broadcasting Organizations (Rome Convention), and
- Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of their Phonograms (Geneva Phonograms Convention).
International copyright protection is achieved under the conventions through the principle of 'national treatment'. Broadly speaking, each convention member country gives the same rights to the nationals of other convention countries as it gives to its own nationals under its own law. The laws of members of the treaties must conform with the minimum rights specified in the treaties.
This means that because Australia is a party to the international copyright conventions outlined above, original works created by Australian citizens or residents are also entitled to the protection given by the copyright laws of all countries which belong to the Berne Convention and TRIPS Agreement. Similarly, Australian performances, broadcasts and sound recordings are entitled to protection by the laws of all countries which are members of the TRIPS Agreement and Geneva and Rome Conventions.
In order to ascertain what copyright protection is available in a particular country, it is necessary to have regard to the copyright laws of that country. It should be noted that in some countries it is necessary to register a work before it will enjoy full copyright protection.
Bilateral agreements between Australia and other countries
Australia is party to bilateral trade agreements with some other countries, including the United States, Singapore and Thailand. These trade agreements can include provisions on protection of copyright. For example, the Australia-United States Free Trade Agreement concluded in 2004 contains extensive obligations on both countries regarding the protection and enforcement of copyright.
Copyright symbol - ©
Use of the copyright symbol was significant when the United States was not a member of the Berne Convention and it would only recognize copyright where the © symbol was used in accordance with the Universal Copyright Convention (UCC). The UCC has been largely overtaken by the other treaties that do not require any formalities. To qualify for copyright protection in countries that are only members of the UCC, it is necessary that works bear, in a prominent place and from the time of first publication, the copyright symbol - © - together with the name of the owner of the copyright and the year of first publication, for example:
© Jane Bloggs 2005
However, using the © symbol, while having little legal effect, alerts others that copyright is claimed in the material in question.
Phonograms symbol -
Under both the Rome Convention and the Geneva Phonograms Convention, the symbol on copies of a sound recording is recognized as sufficiently indicating a claim to the protection of those conventions in the member countries that require such an indication of claim to protection.
Is overseas copyright material protected in Australia?
In Australia, the provisions of the Copyright Act extend to works of nationals,
citizens and residents of other convention countries and to works made or first
published in those countries, by virtue of the Copyright (International Protection)
Regulations. Copyright will therefore subsist in Australia in a work made by a national
of a country that is a party to one of the copyright conventions to which Australia
is also a party - provided the type of work concerned is covered by the convention.
This is subject to certain restrictions in the Regulations.
For example, as Australia and the United States are members of the Berne Convention and are bound by the Australia-United States Free Trade Agreement, original works of US nationals or works first published in the US will receive the same copyright protection as Australian nationals receive under the Copyright Act.
In order to establish in court proceedings who is the owner and whether the copyright has been made under conditions or in a place that is recognized in Australia as giving rise to a valid copyright, valid foreign certificates and documentation (eg US Copyright registration certificates) can be used as evidence and are given a degree of evidential weight. It will be up to the person disputing the ownership and publication information in such certificates to point to something that raises an issue as to the accuracy of what they say.
What are performers' rights?
Under the Copyright Act, performers have the right to prevent the unauthorized recording or live broadcasting or online streaming of their performances. Performers may also prevent certain dealings in unauthorized recordings of their performances, such as broadcasting, making available online, copying, sale, hire, distribution, importation and possession for trade, and the use of an authorized sound recording on the sound-track of a film ('synchronization right'). These rights cannot be assigned.
What is a performance?
A 'performance' includes a performance of a literary, dramatic or musical work (whether or not in copyright) or a performance of a dance, circus or variety act or an expression of folklore. However, reading, recitation or delivery of an item of news or information and the performance of a sporting activity are explicitly excluded from the definition of a 'performance'.
Performers' rights in relation to unauthorized audio recordings lasts for 50 years, and in relation to unauthorized audio-visual recordings lasts for 20 years, from the year in which the performance was given. Performers would also have a share of the copyright in unauthorized sound recordings of their performances.
Remedies for unauthorized use of a performance
Unauthorized use of a performance entitles the performer to sue for an injunction and/or damages. Criminal penalties are also applicable.
FAQs (Frequently Asked Copyright Questions)
What is the difference between an author and a copyright owner?
An author is the person who creates a copyright work. A copyright owner is the person or company which owns the rights in a work or other subject-matter. In many instances the author of a work will be the owner of copyright; however, this need not be the case. An important exception is where copyright works are made by an employee during the course of their employment, in which case copyright vests with the employer (see paragraphs 6.1 6.4). The rules relating to ownership of copyright may also be varied under an agreement; for example, an author may agree to assign his or her rights in a work to someone else
How do you prove ownership of copyright if there is no system of registration?
In most cases the issue of ownership of copyright will not be in dispute. However, where there is a dispute which comes before a court, the court will take into account the evidence of the person who created the work and other persons who were involved in or who knew about the creation of the work. Statements of the ownership of copyright and the date of publication or manufacture appearing on the labeling or packaging of copies of copyright materials will be treated in court as accurate evidence of what they say, unless the person disputing those issues can point to something raising a question about their accuracy. Documents recording the passing of copyright from the original owner to the person claiming present ownership will be similarly treated as evidence unless there is something to question the accuracy of that.
Are names and titles protected by copyright?
Copyright protects literary works including books, poems and newspaper articles. The Copyright Act does not expressly protect names and titles. In most cases dealing with this issue, the courts have held that names and titles are not protected on the basis that they are not substantial enough to constitute literary works and that they fail to satisfy the test of originality under copyright law.
Is there a general exception for home copying?
There is no general exception to copyright infringement for copying for private and domestic use. The copying of copyright materials onto blank video and audio cassettes is only permitted under the Copyright Act in specific circumstances, namely: the recording of broadcasts by educational institutions and those assisting persons with a visual or intellectual disability under a statutory licence (see paragraph 10.10) and the filming or recording of live broadcasts (such as a sporting match) for private and domestic use. Creating back-up copies or car-use copies of audio or video material is not an exception provided for in the Act.
Is permission required to play music in public?
One of the exclusive rights of the owner of copyright in a musical work is to perform that work in public and in the case of sound recordings to cause the recordings to be heard in public.
The playing of music from a radio or television broadcast in the workplace would generally be regarded as a public performance of the work. A licence from the Australasian Performing Right Association (APRA), which is a copyright collecting society representing music copyright owners, should be obtained by the employer or business for this purpose.
Note however that APRA is issuing complimentary licences (ie licences free of charge) to businesses that employ less than 20 people and only play music by the radio or television for the benefit of their employees. (The address of APRA is at paragraph 18.9 of this booklet.) Where CDs or cassettes are played in public, a licence from both APRA and the Phonographic Performance Company of Australia (PPCA) may be required.
Can I copy 10 per cent of a work without infringing copyright?
There is no general exception that allows 10 per cent of a work to be reproduced without infringing copyright. Where a part of a work is copied, the issue is whether a substantial part of that work has been reproduced and an infringement has occurred.
However, there is a 10 per cent rule which applies in relation to fair dealing copying for the purposes of research or study. A reasonable portion of a work may be copied for that purpose, and a reasonable portion is deemed to be 10 per cent of a book of more than 10 pages or 10 per cent of the words of a work in electronic form.
If I change a work can I avoid infringing copyright?
Changing a work does not necessarily avoid an infringement claim. If the resulting work includes a substantial part of the original work (which may be a small but important part) permission will be required from the copyright owner of the original work.
Some tips on how to avoid business failure:
Don't underestimate the capital you need to start up the business.
Understand and keep control of your finances - income earned is not the same as
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More volume does not automatically mean more profit - you need to get your pricing
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