Posted by Minna Boyle on 20 February 2019
Fun fact: under Australian law, you can’t actually ‘copyright’ anything.
Confusing, right? What do people mean when they talk about copyright?
Well, copyright does exist.
Unlike in the US – where you can register a copyright – in Australia, there is no action of ‘copyrighting’. It’s something that happens automatically.
In fact, copyright is a very important legal protection for your intellectual property, so it’s essential that you know how it works and how to make the best of your copyright protection.
What Is Copyright?
Copyright is a type of intellectual property right – a collection of rights over an intangible asset.
Specifically, copyright is a bundle of legal rights over original creative works.
Copyright gives the owner the exclusive right to do certain things with the copyright material, normally for the purposes of economic benefit.
The rules around copyright protection are set out in the Copyright Act 1968 (Cth) (Copyright Act).
If a creation meets the rules in the Copyright Act, then it is automatically protected by the bundle of rights.
This means you don’t need to register for copyright protection (unlike other forms of intellectual property like trade marks).
To put it into context, let’s explore what kinds of creations are copyright protected, and what rights are granted to the owner.
What Does Copyright Protect?
Not everything is copyright protected.
There are 3 main rules to remember when it comes to what is copyright protected.
- Not just an idea
- Certain works
Let’s explore these in a bit more detail.
Not Just An Idea
You know when your friend comes up with an exciting new business idea and tells you all about it, then tells you that you can’t tell anyone, and then tells you that they have copyright over it?
Well, they’re wrong.
You could use that idea and you wouldn’t be infringing their copyright at all!
The first rule of copyright is that you can’t just protect an ‘idea’ on it’s own.
Copyright protects the expression of ideas, and not the ideas themselves.
Put it another way, the idea has to be expressed in a material form.
This means it has to be in writing, expressed visually, filmed, recorded or stored in some other physical way.
The second rule of copyright is that the creation has to be original.
This doesn’t necessarily mean it has to be innovative or an artistic masterpiece.
For example, software code is hardly what you call artistic (well actually, depends on who you ask!) – but there is certainly copyright in software code that is originally created.
Original just means that you can’t copy someone else’s creation – it has to come from your own work.
Copyright only protects certain types of ‘works’ or ‘subject-matters’ as set out in the Copyright Act.
- Literary works
- Dramatic works
- Musical works
- Artistic works
- Sound recordings
- Published auditions
If a creation doesn’t fall into any of these categories then it will not be protected by copyright.
Who Owns The Copyright?
Since copyright arises automatically – who actually gets it?
The general principle is that the creator owns the copyright.
It may not always be obvious who this is, and if you’re unsure it could be a good idea to get legal confirmation.
With a book for example, it’s fairly straightforward that the copyright belongs to the person who wrote the book.
A more complex example is music, where the lyrics might have been written by a songwriter, which could be a different person to the person who wrote the melody – and each person will own the copyright. Then there’s the recording itself which might belong to the record company.
Same goes for film where there are various creators involved, including the producer, director, screenwriter, cinematographer, editor, choreographer, and so on.
What’s more, there are some exceptions to this rule. For example, normally, any copyright created by an employee as part of their job is owned by the employer.
As you can see, it’s not always clear-cut who owns copyright.
The good news is, there is a way to make it clear-cut: You can transfer it.
Transfer IP To Your Company
It is possible to transfer, or ‘assign’, copyright between different people.
So if you’re not sure who owns the copyright – you can always get everyone to sign a contract!
For example, imagine you’re working on a project with various different people and you want to make sure that you (or your company) own all the copyright.
Broadly speaking, here are your options:
- Include an IP assignment clause – This is a clause which you can include in everyone’s contracts before they start working that assigns all of their intellectual property rights in their work to you.
- Sign an IP assignment deed – That is, get everyone to sign a legal document that assigns all of their intellectual property rights in their work to you after the work is complete.
This is especially important for companies that have valuable IP, such as in the tech, media and creative industries.
You want to make sure that your company owns all of the valuable IP that is created for the business.
This is why it’s a good idea to have contracts in place with everyone you work with, particularly on something that has valuable intellectual property involved.
Licensing Your Copyright
If you want someone else to use your copyright material, but you don’t want to give them full ownership, you can licence the IP to them.
You can set up a contract where you give the licensee certain rights to use the copyright materials in certain ways. You can specify the time, place, duration and cost of the licence too.
This is a common way to commercialise your intellectual property.
What Rights Does Copyright Give You?
You’re probably wondering what the point of copyright is in the first place!
Copyright owners have a bundle of rights over the copyright material.
For example, copyright owners have the exclusive right to:
- Reproduce or copy the copyright material
- Communicate the copyright material to the public
- Publish the copyright material
- Perform the copyright material
- Adapt the copyright material
Since they have the exclusive right to do all these things, copyright owners can also stop others from doing them.
How Long Does Copyright Last?
Copyright doesn’t last forever. When copyright ends, the material is free for anyone to use.
The duration of copyright for different types of copyright materials are:
- For literary, dramatic, musical and artistic works, copyright lasts for 70 years after the owner’s death.
- For sound recordings or films, copyright lasts for 70 years after the first publication.
- For television and sound broadcasts, copyright lasts for 50 years after the broadcast was made.
- For published editions of work, the copyright lasts for 25 years after the first publication.
Fun fact involving Mickey Mouse: the expiration period wasn’t always 70 years.
I know it sounds like a conspiracy theory, but the lawmakers in the US kept extending the duration (after lobbying from Disney) so that the copyright for Mickey Mouse doesn’t expire.
The reason why I bring it up is because laws always change based on a number of strange reasons, and it’s important that you keep up to date with changes in the law that might affect your business.
What Does The Copyright Symbol Mean?
Sometimes you’ll see this symbol ‘©’ on a copyright work.
It’s actually not necessary to put this symbol on your copyright material. Copyright protection exists automatically, even without the copyright symbol on it.
However, sometimes people like to use the copyright symbol because it basically puts everyone else on notice.
It’s a way to clearly warn people that the material is copyright protected and if they use it they will be infringing someone’s copyright.
So Then, How Do You Get Copyright Protection?
Since copyright protection arises automatically and you can’t apply for it, it’s something you need to keep track of yourself.
You could get legal advice about whether some material you’ve created would be copyright protected and whether you own the rights.
A good start is having contracts in place with the people you work with.
Also, if you see any creative works out in the world which closely resembles your copyrighted works, take action and make sure you assert your rights!
What To Take Away…
Copyright gives the owner the exclusive right to use the copyright material in certain ways, and stop someone else from using it.
If you’re not sure about whether you own the copyright in some intellectual property used in your business, you can speak to a lawyer to help figure out whether it is eligible for copyright protection, and if so who owns it.
This can be really important, as often copyright protected materials are some of the most valuable parts of a business.
You can transfer copyright, or licence it to others. This means having contracts in place with your collaborators is the best way to be sure about who owns the copyright.