Overview of Copyright
Copyright is a set of exclusive rights given to authors or creators of works, or copyright owners to protect their works against unauthorised use. Copyright protects the expression of ideas in a material form; it does not protect ideas, concepts, styles, techniques or information. Copyright in Australia is governed by the Copyright Act 1968 (Cth). International treaties also apply.
- What copyright applies to
The Copyright Act divides the material protected by copyright into ‘works’ and ‘subject matter other than works’.
The categories of ‘works’ are:
- Literary – e.g. books, journal articles, reports, poems, computer programs, song lyrics, directories, databases (but not insubstantial titles or slogans).
- Dramatic – a composition intended to be represented rather than narrated, e.g. plays, choreography, film scripts, mime pieces.
- Musical – music that has been reduced to writing or to some other material form. Copyright does not subsist in an improvisation that has not been recorded or written down.
- Artistic – e.g. paintings, engravings, photographs, diagrams, illustrations, cartoons, sculptures, craft work, graphs, buildings, building plans, maps.
A work must be original but does not need to have literary or artistic quality.
The categories of ‘subject matter other than works’ are:
- Cinematograph films – the visual images and sounds in a film, television program, video, DVD (as distinct from the underlying film script).
- Sound recordings – the particular recording itself (as distinct from the underlying music or lyrics). Can be in analogue or digital form.
- Broadcasts – TV and radio broadcasters have copyright in their broadcasts which is separate from copyright in the film, music or other works which they broadcast.
- Published editions – the typographical arrangement and layout (as distinct from the literary, dramatic, musical or artistic work itself).
Copyright applies to both print and electronic material and is automatic as soon as the material is fixed, e.g. written down or recorded. There is no registration system or requirement to mark material with a © symbol.
It is important to note that one item can contain a number of separate copyrights, e.g. a music CD will contain several sound recordings, musical works, song lyrics and artwork.
- Ownership of copyright
The general rule is that the author or creator of the material owns the copyright.
This may not be the case if:
- The author / creator has assigned their copyright to another person.
- The author / creator is an employee and created the material in the course of their employment.
- The work is a commissioned photograph, engraving or painting.
Where there is more than one author, the copyright is jointly owned by all the authors.
Copyright ownership is different from physical ownership: just because you own a CD or a painting does not mean you own the copyright in that work.
- Rights of copyright owners
Owners of copyright in literary, dramatic, musical and artistic works have the exclusive right to:
- Reproduce the work (including by photocopying, copying by hand, filming, recording and scanning).
- Make the work public for the first time.
- Communicate the work to the public (e.g. via fax, email, broadcasting, cable or the internet).
- To perform the work in public (this includes playing a recording or showing a film containing the work)*.
- To make an adaptation (e.g. a translation or dramatised version of a literary work; an arrangement of a musical work)*. *does not apply to artistic works.
Owners of copyright in films, sound recordings, broadcasts and published editions have the exclusive right to copy their material. In addition, they have rights relating to:
- Showing films and playing recordings in public.
- Transmitting films and sound recordings to the public using any form of technology.
If you exercise any of the exclusive rights in relation to copyright material, you must have the permission of the copyright owner or be able to rely on an exception, or you will be infringing copyright.
- Duration of copyright
This table sets out the term of copyright protection in Australia as from 1 January 2005, when changes to Copyright legislation extended the duration of copyright in Australia. Any material for which copyright had expired before 1 January 2005 remains out of copyright.
Type of material Factors affecting duration Copyright expired before 1 January 2005 Duration of copyright if not expired before 1 January 2005. Literary, Dramatic or Musical work (except computer programs) Made public during creator's life (ie published / performed / broadcast / recorded & offered for sale) Creator died before 1 January 1955 Life of creator plus 70 years Not made public during creator's life Made public before 1 January 1955 Year made public plus 70 years Artistic works Creator died before 1 January 1955 Life of creator plus 70 years Computer programs Creator died before 1 January 1955 Life of creator + 70 yrs Photographs Taken before 1 January 1955 Life of creator + 70 yrs Engravings Published during creator's life Creator died before 1 January 1955 Life of creator + 70 yrs Not published during creator's life First published before 1 January 1955 Year first published + 70 yrs Cinematograph films Made before 1 May 1969 Generally if made before 1 January 1955 Life of cinematographer + 70 yrs Made after 1 May 1969 Not applicable Year first published + 70 yrs Sound recordings Made before 1 January 1955 Year first published + 70 yrs Broadcasts Made before 1 May 1969 Not protected at all Not protected at all Made on or after 1 May 1969 Not applicable Year made + 50 yrs Published edition (ie typographical arrangement of a published work) First published more than 25 yrs ago Year first published + 25 years
The Copyright Amendment (Disability Access and Other Measures) Act 2017 will change the terms for material not made public during the creator’s lifetime to be closer aligned with those for published material. These term amendments will come into effect from 1 January 2019.
- Moral rights
Moral rights are personal legal rights belonging to creators of literary, dramatic, musical or artistic works and cinematograph films.
In Australia, moral rights are automatic upon creation of the work. These rights are:
The Right of attribution of authorship
- Creators have the right to be attributed when the work is reproduced, published, exhibited in public, communicated or adapted.
- If a creator has not stated the way in which he or she wishes to be identified, any “clear and reasonably prominent” form of identification may be used
The Right not to have authorship of a work falsely attributed
- You must not credit the wrong person as being the creator of a work; nor credit the creator of a work that has been altered without acknowledging the alterations.
- It is also an infringement to knowingly deal with or communicate a falsely attributed work.
The Right of integrity
- A work may not be used in a derogatory way that could affect the creator's standing or reputation, e.g. distorting, mutilating or materially altering the work in a way that prejudices the creator’s honour or reputation
- Simply altering a work, or treating it in a way the creator is not happy with, will not necessarily infringe the creator’s moral rights.
It is not an infringement of moral rights if the creator has given consent or if your failure to attribute or your derogatory treatment of the work was reasonable in the circumstances.
Unlike the copyright in the work moral rights cannot be transferred or sold by the creator to a third party.
Moral rights last for the same term as copyright, generally 70 years after the death of the creator, asides from the right of integrity for cinematograph films which expire on the creator’s death.
For more information, please refer to the Australian Copyright Council’s website for their information sheet on Moral Rights.