Whether you publish a book, a brochure, reports, newsletters, DVDs, audio-recordings/CDs, plays/scripts, posters, a web blog or any other form of material, in hard copy or a digital version, there are several legal issues you must consider in order to ensure that:
What is copyright?
Copyright is a bundle of economic rights which give their owner the exclusive right to do certain things in relation to the object it protects.
Copyright only protects specific things or "subject-matters" mentioned in the Copyright Act 1968 (Cth). Copyright protects the following "works":
Copyright does not protect information, ideas, concepts, styles and methods. It only protects the expression of ideas in a material form in any of the categories mentioned above. As a result, copyright arises when an idea, concept or information is written down, expressed visually, filmed, recorded or stored on the hard drive (eg. computer, USB stick, etc). What is important is that the information or idea has been put down in some kind of data.
In order to attract copyright protection the work must be original. The work does not have to be innovative or artistic to be original but must be attributable to the author’s skill and labour, and not copied.
Copyright protection is automatic upon creation of the work. There is no need to register a work in some official register. The symbol © is used for notification purposes, to put people on notice that the work is protected by copyright, but is not required for the protection to exist.
How long does copyright last?
Copyright lasts for 70 years after the death of the author of the work. In the case of subject-matters other than works, copyright lasts for:
Who owns copyright?
In the following situations, the author of a work or maker of a subject-matter other than work does not own copyright:
The general principle as well as the exceptions mentioned above can be modified by agreement. Contracts play a very important role in this area. It is good practice to have written agreements with all the contributors involved in your publication project to ensure copyright ownership is clearly determined.
Two or more people can own copyright jointly if they are joint authors of copyright material. People are joint authors if their contribution to the work is inseparable from the contribution of any other author. This depends on the extent of each author’s contribution to the creation of the work and the amount of skill and labour each contributes.
Two or more people can also own copyright jointly in some material if they have entered into an agreement to that effect, regardless of their contribution to the creation of the copyright material.
If authors jointly own copyright, each owner must get the consent of the other(s) before exercising copyright rights (eg. allowing someone else to use your jointly owned material).
Works or other subject-matters containing copyright material by third parties
Situations of joint authorship must be distinguished from situations where individual copyright exists in various subject-matters forming the work. Copyright material often contains material by third parties which is itself protected by copyright. For example, with the permission of the copyright owner of the relevant material (see below, Use of copyright material), you quote a poem in your novel, or reproduce a painting as an illustration in your brochure. Ownership of copyright in the newly created work, the novel or brochure, does not affect ownership in the original material reproduced.
This situation arises regularly in relation to films. The script of the film, protected as a literary or dramatic work, might be based on a pre-existing novel, itself copyright protected by copyright as a literary work. Similarly, the film might include musical works, and reproduce artistic works. The fact that the filmmaker owns copyright in the film does not mean that he owns the separate copyright in the script, in the underlying novel or in any music. For more information, see below Film projects.
Copyright in translated works
A translation is protected independently by copyright as an original literary work, which co-exists with copyright in the original work. As a result, you need permission from the copyright owner of the initial (underlying) work not only to translate it (which means exercising the exclusive right to adapt the work; see below Rights of a copyright owner) but also to exercise any of the other rights of a copyright owner, such as reproducing or publishing the work.
If you want to use an existing translation, you need permission from both the owner of copyright in the underlying work and in the translation.
Use of copyright material
Rights of a copyright owner
Copyright owners have exclusive rights in relation to the use of their copyright material. As a copyright owner you can do certain things with your work, let someone else do these things as well as stop someone from doing them.
Your rights as a copyright owner are the right to:
|Reproduction in material form|
|Performance in public|
|Cause to be seen in public|
|Cause to be heard in public|
|Enter into commercial rental arrangements|
By assigning your copyright, you transfer it to a third party which then owns it with all the rights deriving from copyright ownership. In order to be valid, an assignment of copyright must be in writing and signed by the person assigning copyright.
By licensing your copyright, you grant a third permission to exercise some or all of the exclusive rights of a copyright owner.
Common terms of licence
If you licence copyright material, it is important to determine:
There are three main types of licence:
Unless you are entering into an exclusive licence (which must be in writing and signed by the copyright owner granting the licence), there is no requirement to enter into a licence in writing. Like most contracts, a licence can be verbal, implied, result from the parties’ conduct or be in writing.
It is advisable to enter into a written licence to ensure that all the important aspects of the licence are covered, for further reference and for ease of evidence if there is a dispute about the licence.
In some circumstances, a licence to use copyright material is implied even in the absence of any contract. For example, if you commission someone to create, for reward, a work for a specific purpose, such as an illustration for a book, you have the right to use the illustration in the manner and for the purpose agreed at the time of the commission.
Creative Commons is a system of electronic licences and associated databases that allows for creators to selectively grant and retain rights in innovative ways. They aim to provide authors with a more flexible system than that governed by the Copyright Act to attribute some aspects of their work to the public domain (for example because of the benefits of raising awareness on an issue by allowing a free broad distribution of information on the issue) while retaining other rights.
There are four main types of creative commons licences:
by Attribution: you allow the use of your work for any purpose (copy, distribute, communicate and adapt), including a commercial one, so long as you are credited as the author;
nd — No Derivative Works: your work may be copied, distributed or communicated with attribution of your authorship, but may not be used in a subsequent derivative work;
nc — Non-Commercial: you allow the use of your work for any purpose (copy, distribute, communicate and adapt) except a commercial one, with attribution of authorship . It is uncertain what a non-commercial purpose is given the vague Creative Commons definition of the terms;
sa — Share Alike: you allow the use of your work for any purpose (copy, distribute, communicate and adapt) with attribution of authorship. Any derivative work must be distributed under the same Share Alike licence.
In addition, the Non-Commercial-Share Alike and the Non-Commercial-No Derivative Works licences combine elements of the main licences.
Creative Commons licences are irrevocable for the term of copyright. This means that if you grant a non-commercial licence in relation to your work, you might find it difficult to publish it commercially at a later stage as your publisher will be competing against the version available freely under the Creative Commons licence which you cannot revoke.
The use of another’s copyright material without the copyright owner’s consent amounts to a copyright infringement if:
The use of a substantial part of another’s copyright material without the copyright owner’s consent is allowed in limited situations such as:
If a court agrees that your copyright has been infringed, you can get an order from a court that:
What are moral rights?
Moral rights are personal rights that connect authors to their work. Moral rights arise automatically and have a legal meaning. There are three types of moral rights:
The author of a work has moral rights in relation to that work, even if the author is not the owner of the copyright in the work.
Because moral rights recognise the ongoing connection between authors and their work, they are individual and cannot be given away, sold or otherwise. As a result, you might not own copyright in a text you write for your employer but you have moral rights in relation to your text, subject to the consent regime or exceptions.
You can consent in writing to other people’s specific actions or omissions which would, in the absence of consent, amount to an infringement of your moral rights. This is common in the area of literary works created within the course and scope of employment, where the employee consents not to be attributed as the author of a text (eg. a volunteer in your organisation consents not to be attributed as the author of an information sheet or text on your website).
How long do moral rights last?
Moral rights last for the lifetime of the author and 70 years following the author’s death
Moral rights infringement
In principle, any act which is contrary to your moral rights, for instance a failure to attribute you or a derogatory treatment of your work, is considered an infringement of your moral rights
There is, however, no infringement of your moral rights if:
There is no infringement of the moral right of attribution and of integrity if it was reasonable in the circumstances not to identify the author or to subject the work to the derogatory treatment.
A common factor to determine the reasonableness of a failure to attribute the author of a text is when the text is written by an employee, for example internal guidelines, sample contracts, information sheets. In such circumstances, the copyright material is attributed to the employer entity rather than to the individual or individuals who actually did the drafting.
If a court agrees that your moral rights have been infringed, you can get an order from a court that:
If you publish material about people who are identified by name or who can be identified, you must ensure that the material is not defamatory. You may be liable for defamation if:
As the law of defamation aims to balance free speech with the right of an individual to enjoy a reputation free from an indefensible attack, there are some defences to a claim for defamation, including the defence of:
If your publishing project includes the production of a film, you must ensure that you have obtained all the necessary authorisations to incorporate copyright material belonging to others, such as artistic, literary, dramatic or musical works, as well as performances. These permissions are also referred to as clearances, and the process of obtaining them is called clearing rights. Clearances are often contained in a licence.
All clearances should be obtained at the outset. For example, music clearances should be investigated as soon as you contemplate using a particular piece of music in the film. Cast agreements should be negotiated and signed prior to any actor appearing in the film.
The producer should ensure that the person or organisation giving the clearance actually owns the copyright or has the relevant rights to be cleared. An effective manner of ensuring this is to get that person or organisation to provide a warranty and indemnity that they own the work and have not exclusively licensed the rights to any other person or organisation.
As a producer, you might need to clear rights in relation to:
Arts Law Centre of Australia (www.artslaw.com.au), in particular the following information sheets:
Copyright Agency Limited (CAL) (www.copyright.com.au). CAL manages copyright on behalf of creators and can licence rights to users of copyright material.
Viscopy (www.viscopy.org.au) manages the rights of its visual artist members and provides copyright licences.
Creative Commons (www.creativecommons.org.au)
This fact sheet is general. It does not constitute, and should be not relied on as, legal advice. The Law and Justice Foundation recommends seeking advice from a qualified lawyer on the legal issues affecting you before acting on any legal matter.
While the Law and Justice Foundation tries to ensure that the content of this fact sheet is accurate, adequate or complete, it does not represent or warrant its accuracy, adequacy or completeness. The Law and Justice Foundation is not responsible for any loss suffered as a result of or in relation to the use of this fact sheet. To the extent permitted by law, the Law and Justice Foundation excludes any liability, including any liability for negligence, for any loss, including indirect or consequential damages arising from or in relation to the use of this fact sheet.
The information in this fact sheet is current at 1 August 2010.
This fact sheet is based on the laws applicable in Australia. However, information provided in this fact sheet in relation to a State or Territory should be read as relevant for that State or Territory only.
© Arts Law Centre of Australia 2010