Identify Copyright Act Issues and Seek Copyright Advice

Reading: Identify Copyright Act issues and seek copyright advice

Identify Copyright Act issues and seek copyright advice

Inside this reading:

What does copyright mean?

The Australian Copyright Act 1968

Understanding and interpreting copyright

What is commercial exploitation?

What is protected by copyright?

What copyright doesn’t protect

The public domain

What rights does copyright provide?

Granting and seeking copyright permission

Performer’s rights

Moral rights

Fair dealing, educational and non-commercial use

How long does copyright last?

Example 1: Copyright of works created now

Example 2: Copyright before and after 2005

Where can I go for copyright advice?

Legal advice

Summary

What does copyright mean?

You may have often heard the term copyright but not thought much about it. You might even have thought copyright had nothing to do with you. Yet if you have ever written an essay or a poem or even a work report, or painted a picture or drawn an original diagram, you’ve created a copyright work. On the other hand, if you have ever downloaded an MP3 file, copied a music CD or taped a TV program, then you may have infringed someone else’s copyright.

Copyright is the exclusive right of the creator of material to reproduce, adapt, publish, perform and communicate that material. In fact, copyright can be thought of as a bundle of rights that can be traded by the copyright owner. Copyright is designed to reward and provide incentives to creators of copyright material.

The Australian Copyright Act 1968

Copyright is granted by law and in Australia that law is the Australian Copyright Act 1968 (Act). Under Australian copyright law, copyright protection is immediate and automatic once a copyright work is created. The work is then generally protected by copyright law for the life of the author and a further 70 years.

The creator of a copyright work is usually, but not always, the first owner of copyright in that work. The copyright in any material you produce in the course of your employment will be owned by your employer. If you are contracted to produce a report for an organisation, for instance, the contract will often state that the organisation owns or is assigned copyright in any material you create for the report.

Understanding and interpreting copyright

Understanding and interpreting copyright can sometimes be confusing, but there are some general principles to follow. A sound grasp of the basic elements of copyright law will enable you to better understand your own rights (or your employer’s rights), and the rights of other creators and contributors when you deal with copyright material. If the basic concept of copyright was summed up in one sentence, it might be said that:

Copyright gives certain things, certain rights and protection for a certain period of time.

What is commercial exploitation?

As mentioned, copyright can be regarded as a bundle of rights that can be traded for economic gain. Commercial exploitation of copyright is simply the trading of these rights for commercial or financial gain or advantage. This is usually done by contract, either as an assignment or as a licence.

Material doesn’t have to be sold to be exploited. Copyright material used in advertising, for instance, is being used in a commercial sense.

What is protected by copyright?

The Copyright Act 1968 gives protection to two broad categories of material—‘works’ and ‘subject matter other than works’. Works are further divided into textual (literary and including computer programs), dramatic, artistic and musical works. Material described by the cumbersome phrase ‘subject matter other than works,’ includes cinematograph films, sound recordings and broadcasts.

Table 1 on the next page itemises those broad categories of materials protected by copyright.

Table 1: Types of materials protected by copyright

Works / Examples / Subject matter other than works / Examples
Literary / novels, poems, song lyrics, newspaper and journal articles, essays, reports, computer programs / Cinematograph films / films, videos, DVDs, Flash animations
Dramatic / screenplays, stage plays, choreography / Sound recordings / CDs, audio cassettes
Musical / songs, music as distinct from lyrics or recording of music / Broadcasts / television and radio broadcasts
Artistic / paintings, drawings, diagrams, cartoons, photos, maps, sculpture / Published editions / books, magazines, newspapers

What copyright doesn’t protect

Copyright covers a wide range of creative material, but it doesn’t protect intangible things such as ideas or concepts—only the material expressions of those ideas or concepts. Ideas, information, styles and techniques can’t be copyright. Names, addresses, titles and slogans are generally regarded as being too small or unoriginal to be protected as copyright works. People and images of people can also not be protected by copyright.

The public domain

Public domain works are also free of copyright. The public domain is made up of the body of knowledge and innovation (especially creative works such as writing, art, music, and inventions) in relation to which no one can establish or keep proprietary interests or ownership. Public domain materials are considered to be part of the common cultural and intellectual heritage of humanity, which in general anyone may use or exploit. Works are in the public domain when copyright expires (see ‘How long does copyright last’ below).

Copyfree and copyleft

The term copyfree is used informally when a work of art or other production is free from copyright protections, and may be copied, changed or distributed freely.

The term copyleft describes a group of licenses applied to works such as software, documents, music, and art. A copyleft license uses copyright law

to ensure that every person who receives a copy or derived version of a work, can use, modify, and also redistribute both the work and derived versions of the work.

One of the main reasons creators or authors might want to make copyleft apply to their work is that they hope to encourage and invite a wide range of people to make ongoing improvements and elaborations to the work.

Copyleft is one of the key features distinguishing several types of open source software licenses.

What rights does copyright provide?

The owners of copyright in textual (literary), dramatic and musical works have the exclusive right to:

reproduce the work in a material form (photocopying, scanning, filming, recording)
publish the work (making and distributing copies)
communicate the work to the public (fax, email, broadcast or the Internet)
perform the work in public ( such as playing a song in a pub)
adapt the work (as when making an English translation of a foreign language work).

The owners of copyright in artistic works have the exclusive right to:

reproduce the work in a material form
publish the work
communicate the work to the public.

The owners of copyright in films, sound recordings, broadcasts and published editions have the exclusive right to reproduce their material as well as there being rights relating to communication, public performance and rebroadcasting.

Some owners of copyright also have an exclusive rental right. However, rental rights only apply to computer programs, sound recordings and works on sound recordings.

Granting and seeking copyright permission

As a copyright owner you also have the exclusive right to authorise others to use your copyright material in ways protected by copyright. As a professional author or creator you may choose to do this through an agency such as the Copyright Agency Limited in Australia.

On the other hand, if you use copyright material in any way that is protected by copyright, you must seek the permission of the copyright owner, explaining exactly how the material will be used and what acknowledgement of it use will accompany the material.Table 2 below summarises the scope of the various rights within copyright.

Table 2: Rights pertaining to copyright

Reproduction / Publishing / Communication / Public performance. / Adaptation
Works / Literary / Yes / Yes / Yes / Yes / Yes
Dramatic / Yes / Yes / Yes / Yes / Yes
Musical / Yes / Yes / Yes / Yes / Yes
Artistic / Yes / Yes / Yes / No / No
Subject matter other than works / Cinematograph film / Yes / No / Yes / Yes / No
Sound recording / Yes / No / Yes / Yes / No
Broadcast / Yes / No / Yes / No / No
Published editions / Yes / No / No / No / No

Performer’s rights

Performers have some rights in relation to their performances, especially live performances, and to their use in recorded media.

For more specific information download and read Information Sheet G22 ‘Performer’s Rights’ from the Australian Copyright Council’s web site

Moral rights

Moral rights grant to the creators of copyright material the right to be acknowledged as the creator and to have the integrity of their work respected. This means that creators should always be given due credit and that any use that may affect the integrity of their reputation or their work should be carefully considered and then, if possible, checked with the creator.

Irrespective of who owns the copyright, moral rights remain with the creator of the material, or creator’s heirs, for the life of the copyright and cannot be traded.Moral rights cannot be waived, but the creator of the copyright material can consent to certain acts or types of treatment that may be reasonable.

Fair dealing, educational and non-commercial use

There are no general exemptions from copyright law for non-profit organisations or for personal use.

The Copyright Act 1968 (Act) does permit a degree of use of copyright works without the need of formal permission or payment, but with a requirement that the source of the material is properly acknowledged. Uses permitted under the Act include any ‘fair dealing’ for the purposes of study, research, criticism or review (such as quotes or extracts, etc).

Educational use

Under the Act, some copying for educational purposes is also permitted if the institution has license arrangements with the Copyright Agency Limited (explained more below and in a later topic).

Non-commercial use

Most institutions holding archives of images allow students or individuals to use images for study of personal use (in files downloaded) if the source of the image is properly acknowledged. (Formal copyright permission and the payment of user fees are required for any commercial use of images.)

How long does copyright last?

As mentioned above, copyright protection doesn’t last forever, after copyright expires works are in the public domain. Nor is there a standard duration that applies to all copyright material—it varies according to the type of material and other factors, such as the date of creation or the first publication.

Until 1 January 2005, copyright generally lasted for the life of the relevant creator plus 50 years (with various exceptions to this rule).

Under the Free Trade Agreement with the United States, Australia agreed to extend the general duration of copyright. As a result, the general rule now is that copyright lasts for the life of the creator plus 70 years (or, where duration depends on year of publication, until 70 years after it is first published).

However, the Free Trade Agreement did not include any obligation to revive copyright if copyright had already expired. This means that if, under the old rules, copyright had already expired by 1 January 2005, it stays expired, and the material can be used freely (at least within Australia).

Example 1: Copyright of works created now

Let’s assume today is your fortieth birthday and you have written yourself a poem in commiseration. The poem will be protected from the date of creation and will remain in copyright for 70 years after the year in which you die. Of course you can’t benefit much from your copyright from the other side, but your heirs and successors can because copyright is property and can be willed and passed on.

Liese wants to use an image for the web site she is developing for her organisation of people disembarking from a migrant ship. She has found two images in the National Archives on the web.

One image was taken in 1954 of a ship docking in Melbourne and the other, also in Melbourne, is of a ship docking in 1956. In contacting the National Archives for permission to use the images, she learns that the copyright of the first image related to the date of its creation, in 1954, and that its copyright elapsed in 2004 (the older 50-year ruling). It is therefore out of copyright (although a fee will need to be paid to the National Archives for the supply of the high-resolution image she needs).

The other image is copyrighted from the date of its creation in 1956, and therefore, because Australia has from January 2005 extended the duration of copyright to 70 years for works still in copyright, the image will remain in copyright until the year 2026. Liese would need to seek formal permission from the copyright holders to use the image and her company may have to pay additional fees.

For a more detailed listing of copyright durations you can refer to the Australian Copyright Council Information Sheet G23 Duration of Copyright at http//

Where can I go for copyright advice?

The Australian Copyright Council

The Australian Copyright Council is an independent not for profit organisation that provides information, advice and training about copyright in Australia.The Council’s web site at has a comprehensive range of freely downloadable information sheets covering all areas of copyright. The Council also publish a range of books (available for sale) with more detailed discussions about aspects of copyright.

The Copyright Agency Limited (CAL)

The Copyright Agency Limited (CAL) is an Australian copyright management company that provides a bridge between creators and users of copyright material. CAL represents authors, journalists, visual artists, surveyors, photographers and newspaper, magazine and book publishers to license the copying of their works to the general community. It collects fees from the use of copyright material on behalf of creators.

An example of how CAL works is in its license for educational institutions. The Australian Copyright Act 1968 (Act) allows a maximum of one chapter or 10 percent of a publication (which ever is greater), to be copied by any educational institution for its educational purposes, provided that the institution has given a remuneration notice to CAL under the Act.

Other organisations that offer copyright advice

Advice can also be obtained from the various organisations that represent copyright owners and performers and whose activities are relevant to copyright. The major organisations are listed in Table 3 on the next page.

Legal advice

As copyright can be legally complex at times it is advisable to seek professional legal advice before entering into a formal copyright agreement, or if you or your company become involved in a copyright dispute. You may have to shop around to find a lawyer with appropriate copyright or intellectual property expertise.

Table 3: Organisations that offer copyright advice to clients

Organisation / Clients / Web address
The Australian Copyright Council (ACC) / Provides information, advice and training about copyright in Australia to the general public and industry /
Australasian Performing Right Association (APRA) / Represents music composers, song writers and music publishers /
Australasian Mechanical Copyright Owners Society (AMCOS) / APRA (above) also manages the reproduction rights business of AMCOS, which represents most music publishers in Australia and New Zealand and, through reciprocal arrangements, most of the world’s composers, writers and music publishers /
Copyright Agency Ltd (CAL) / An Australian copyright management company whose role is to provide a bridge between creators and users of copyright material /
National Association for the Visual Arts (NAVA) / Represents visual artists /
Australian Writers Guild (AWG) / The professional association for all performance writers, that is, writers for film, television, radio, theatre, video and new media /
Australian Society of Authors (ASA) / Represents literary creators such as book authors and writers /
Media, Entertainment and Arts Alliance (MEAA) / A professional organisation for people working in the areas of media, communications, entertainment, arts, and sport /
Audio Visual Copyright Society (Screenrights) / Screenrights administers provisions in the Copyright Act 1968 that let schools, TAFEs and universities copy from TV and radio for teaching, provided they pay a fee /

Summary

Copyright is a bundle of rights legislated in Australia under the Copyright Act 1968 (Act). The basic principles of copyright are designed to protect the interests of the individual creators of original material or the organisations or companies that commission the creation of original material.

The various rights within copyright—to reproduction, performance, broadcasting, adaptation and electronic dissemination and storage—can be traded, and this is termed commercial exploitation of copyright. The copyright Act also recognises the need to allow fair dealing of materials for the purposes of research, study or review (such as quotations).

Moral rights, as a further condition of copyright, additionally protect the integrity of a work in its lifetime and cannot be traded.

Copyright generally lasts for 70 years after the death of the author or creator of the material (and before Australia’s free trade agreement with the USA in January 2005, that period was 50 years).

The Copyright Council of Australia is the main body for information about copyright rights and obligations. Other bodies representing a range of creators or users of copyright material are also able to provide information and advice for most circumstances.

In complex matters, such as formal contracts or disputes, it is often best to seek legal advice from a lawyer specialising in intellectual property law.

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