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Publishing toolkit - Factsheet 7 [Long version]


Copyright

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:

  • your rights in relation to the material you publish are adequately protected; and
  • you do not infringe anyone’s right in relation to existing material.

This fact sheet is for authors as well as for users of copyright material and provides basic information on copyright and moral rights. These are intellectual property rights, i.e. rights resulting from intellectual activity in the fields of industrial, scientific, literary or artistic endeavour ("property of the mind"). This fact sheet also introduces a few other areas of law which you should be aware of before publishing.

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":

  • literary works;
  • dramatic works;
  • musical works; and
  • artistic works,

Copyright also protects "subject-matter other than works", being:
  • films;
  • sound recordings;
  • broadcast; and
  • published editions.

The Copyright Act defines only some of the above categories, for example "artistic works", "dramatic works" and "broadcast". If a creation of the mind does not fall into any category of works or subject-matters other than works, copyright does not apply.

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:

  • 70 years from the year of first publication of a sound recording or film;
  • 50 years from the year a television or sound broadcast was made; and
  • 25 years from the year of first publication of a published edition of a work.

Copyright lapses after the relevant time and the work is in the "public domain". This means that anyone can use it.

Who owns copyright?

General principle

  • The author of a literary, dramatic, musical or artistic work owns copyright in the work.
  • The maker owns copyright in a sound recording, a film, a television or sound broadcast.
    • Maker of a sound recording: person who owns the medium which embodies the recording. For example, the record company is often the owner of a sound recording. If the sound recording is made from a live performance, any performer is also considered as maker of the sound recording, and therefore also owns copyright in the same, except if the performer is an employed musician.
    • Maker of a film: person who makes the arrangements to make the film, usually the producer.
    • Makers of broadcasts: those who provide the broadcasting service.
  • The publisher owns copyright in the published edition of a work.

Exceptions

In the following situations, the author of a work or maker of a subject-matter other than work does not own copyright:

  • Contract

    The author or maker has entered into a contract under which copyright is assigned, i.e. transferred to another party. In order for an assignment of copyright to be effective, it must be in writing and signed by the copyright owner.
  • Employment

    The author of a literary, dramatic, artistic or musical work has created the work "in pursuance of the terms of his or her employment by another person under a contract of service". In that situation, the employer owns copyright in the work created in the course and within the scope of the employment.

    If the author is a contractor or freelancer, or a volunteer, the exception does not apply. In order to determine who owns or will own copyright in a given situation, it is therefore necessary to ascertain the author’s status. For more information on the distinction between contractor and employee, refer to the Arts Law Centre of Australia’s Information sheet Employment Issues for NSW Employees.

    If volunteers work for you, you must enter into a written agreement with them under which they agree to assign any copyright to you to ensure you own copyright in any material they create while carrying out their activities for you.
  • Some commissioned works

    If someone is paid to make a photograph, portrait or engraving for private or domestic purposes, the commissioner owns copyright in the work. This is unlikely to apply if you are paying a photographer to take or supply photographs for your organisation’s publication.

    The commissioner owns copyright in a film or a sound recording made against remuneration.
  • Crown rights

    The Commonwealth or a State owns copyright in any subject-matter of copyright created by, or under the direction or control of the Commonwealth or the State. This can be of concern if your organisation makes a submission on a law reform issue that is first published by the government.

Contracts affecting ownership

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.

Joint authorship

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:

  • reproduce or copy your work;
  • communicate your work to the public (make available online or transmit electronically, for example by broadcasting, by email or on the internet);
  • publish your work;
  • perform your work; and
  • adapt your work.

The table below indicates the exclusive rights of a copyright owner in relation to the different categories of copyright material:

Literary works
Artistic works
Musical works
Dramatic works
Films
Sound recordings
Broadcast
Published editions
Reproduction in material form
First publication
Communication
Performance in public
Adaptation
Cause to be seen in public
Cause to be heard in public
Enter into commercial rental arrangements

Assigning and licensing

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:

  • the permitted uses

    Which rights of a copyright owner can the licensee exercise? The parties (copyright owner or licensor and licensee) should consider which rights have to be exercised for a specific purpose. For example, you might agree with another organisation to license the right to reproduce and publish an information booklet in hard copy, but retain the right to communicate the information in the booklet via your website only;
  • the territory

    In which area (such as State, country, region of the world) can the licence be exercised? If you have a publication which contains information relating to the laws of NSW, you might agree to use by other similar organisations in NSW but not to those in other States;
  • the term of the licence

    For how long is the licence valid? It can be for the duration of copyright but also for a much shorter period;
  • any sub-licensing right

    Does the licensee have the right to allow others to use the material in the manner contemplated by the licence? In some circumstances, it is necessary to have the right to sublicense, for example where a publisher sends the text to a printer for reproduction;
  • the nature of the licence

    Is the licence exclusive, sole or non-exclusive (see below Nature of the licence)?
  • any payment by the licensee

    The copyright owner can ask for money for the use of his copyright material. Payment can be in the form of a flat fee, a periodic fee or on a royalty basis, or a combination of all of those depending on the nature of the transaction.

Nature of the licence

There are three main types of licence:

  • Exclusive licence

    The copyright owner authorises the licensee to exercise an exclusive right of the copyright owner in relation to copyright material to the exclusion of anyone else, including the copyright owner. In order to be valid, the exclusive licence must be in writing and signed by the copyright owner;
  • Sole licence

    The copyright owner authorises the licensee to exercise an exclusive right of the copyright owner in relation to copyright material to the exclusion of anyone else except the copyright owner; and
  • Non-exclusive licence

    The copyright owner authorises the licensee to exercise an exclusive right of the copyright owner in relation to copyright material and remains free to exercise that right as well as authorise others to do so.

Form 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.

Implied licences

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

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;

ndNo 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;

ncNon-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.

Copyright infringement

The use of another’s copyright material without the copyright owner’s consent amounts to a copyright infringement if:

  • there is an unauthorised use of a substantial part of the work; and
  • an exception permitting the use does not apply.

"Substantial part" means a vital or important part of the copyright material, based on the quality rather than the quantity of copyright material used. It is assessed by reference to the copyright material allegedly used, not the new work.

Exceptions

The use of a substantial part of another’s copyright material without the copyright owner’s consent is allowed in limited situations such as:

  • fair dealing purposes. Fair dealing purposes include research or study, criticism or review, parody or satire as well as reporting the news;
  • incidental use in film and television broadcast; and
  • certain uses of artwork (eg. sculptures that are permanently in place in a public space).

Remedies

If a court agrees that your copyright has been infringed, you can get an order from a court that:

  • the person must stop the infringement (an injunction); and
  • you are paid money for the use of your work (damages or account of profits);

If the person wants to continue using your copyright material, you can grant a licence under terms you should agree mutually.

Moral Rights

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:

  • Right of attribution

    Your right to be identified and named as the author of your work;
  • Right against false attribution

    Your right to prevent others to be identified and named as the author of your work; and
  • Right of integrity

    Your right to ensure that your work is not subjected to derogatory treatment, that is in any manner harmful to your honour or reputation.

Who owns 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.

Consent regime

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:

  • you have consented to the action or omission that would otherwise infringe your moral rights; or
  • the defence of reasonableness or an exception applies.

Defence of reasonableness

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.

Remedies

If a court agrees that your moral rights have been infringed, you can get an order from a court that:

  • you get a public apology;
  • you are paid money for the harm you suffered (damages);
  • the person must stop the infringement (an injunction); or
  • an order that any false attribution or derogatory treatment is removed or reversed.

Other relevant issues

Defamation

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:

  • you make a communication to a third party;
  • the communication is about an identified or identifiable person; and
  • the communication is defamatory.

A communication is defamatory if a reasonable person would think less of the identified or identifiable person because of what was said about him or her. The test is applied to all aspects of a person's reputation. It is, however, not enough that the communication hurts or upsets the plaintiff. In order to be defamatory, it must affect the plaintiff’s reputation in a damaging way.

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:

  • honest opinion;
  • justification/truth; and
  • qualified privilege.

For more information about defamation, please refer to the Information sheet Defamation of the Arts Law Centre of Australia. The section "Before you Publish" of that Information sheet lists practical tips to avoid an action.

Film projects

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:

  • the script for your DVD;
  • any literary work read out or reproduced in the film (such as letters or newspaper articles read in a documentary);
  • any music used in the film whether as a soundtrack or performed as part of the script;
  • any artistic work, for example painting, sculpture, photograph, illustration, as well as building or model of building, etc. used in the film;
  • any footage from another film or video, including news footage;
  • any interview used in the film;
  • people working on the film; and
  • filming in certain locations.

For more information about the main legal issues a filmmaker or producer should consider when making a film, please refer to the Short Film Competition - Producer’s Guide available from the Arts Law Centre of Australia.

Checklist

  • Who owns copyright in the material you intend to publish?
  • Is an assignment of copyright necessary?
  • Do you have the permission to use any copyright material you do not own? Did you obtain any other clearance you need?
  • Is your exclusive licence in writing?
  • Have you covered all important terms of licence?
  • How are you dealing with moral rights? Will you attribute the author? Did the author consent in writing not to be attributed? Is it reasonable in the circumstances not to attribute the author?
  • Is any material defamatory?

Further information and resources

Arts Law Centre of Australia (www.artslaw.com.au), in particular the following information sheets:

  • Frequently Asked Questions
  • Introducing Creative Commons
  • Legal Issues for Bloggers
  • Contracts
  • Employment Issues for NSW Employees
  • Defamation

Australian Copyright Council (www.copyright.org.au). The Australian Copyright Council also has information sheets on a range of topics. If you are making a film, the information sheet Filmmakers & Copyright provides a good overview of the relevant clearances.

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)

Disclaimer

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.

For more information, visit www.lawfoundation.net.au/information or contact the Arts Law Centre of Australia (www.artslaw.com.au)

© Arts Law Centre of Australia 2010



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