What is Copyright?
Copyright provides a legal right in the copyright owner to prevent others from doing certain things such as copying and plagiarising all or a substantial part of the copyright owner’s works without permission from the copyright owner.
Common examples of material or “works” that can be protected through copyright include: designs, music, art, books and films - to name a few.
Unlike some other types of IP that require registration, copyright is automatic and exists the moment you express your idea in material form, such as, creating a painting.
Copyright is an intangible right (as opposed to a physical or tangible property right). For example, while a painting has a physical or tangible element - you can see the painting and touch the painting, the copyright in the painting and the artist's rights associated with it are intangible forms of property.
Copyright does not exist in an idea per se. Rather, copyright subsists in, and protects expressions of ideas. For example, just because you might come up with the idea that a house should contain four bedrooms, two bathrooms and a verandah, does not mean you have copyright in that idea. However, if an architect designed plans for a house with four bedrooms, two bathrooms and a verandah, the architect would own the copyright in the plans incorporating the architect’s design.
What We Do
Greyson Legal | IP Lawyers are experienced in copyright law. Our copyright legal services include:
assist with copyright infringement
drafting commercial agreements relating to ownership and use of copyright works
copyright assignment agreements
franchising and copyright advice
In Australia, the Copyright Act 1968 (Cth) provides the statutory framework for protection.
Under the Act, the works must be:
in a material form (eg. in writing, like a book or by way of a painting, etc); and
a new creation (ie. be original – not copied).
International Copyright and Treaties
Australia is a party to a number of international treaties dealing with copyright. For example, the Berne Convention for the Protection of Literary and Artistic Works
Australia also has bilateral treaties in relation to copyright with other countries, such as, New Zealand.
Many countries grant minimum standards of copyright protection for Australian material (such as books and music) under these international treaties.
Term of Copyright
In Australia, copyright lasts for 70 years after the death of the creator, or 70 years from the end of the year the material was first made public.
Individual creators of material also have what is known as “moral rights”.
These include the:
right to be attributed as the creator of the work;
right to take action if their work is falsely attributed as being someone else’s work;
right to take action if their work is altered in a way that is detrimental to their reputation.
Employees and Copyright
Generally, the initial person to create the relevant work is the copyright owner. However, there are exceptions. For example, in an employer/employee relationship where the works created by the employee is part of their job, then the copyright in the works would normally be owned by the employer. Well drafted Employment Agreements will contain terms and conditions which deal with intellectual property rights in an employer-employee context.
A Copyright Notice is an internationally recognised identifier that a particular work is protected by copyright.
For example, a simple copyright notice might look like this:
© XYZ Pty Ltd 2023
A copyright notice may be placed on the work, however, it is not necessary for copyright protection.
Copyright can be infringed when a person uses all or a “substantial part” of someone else’s copyrighted material without permission.
A “substantial part” is not defined by the Copyright Act 1968. However, the courts consider that the quality of what is copied, not the quantity, is the deciding factor.
A substantial part is typically an essential feature, distinctive or a vital material part. The part does not necessarily have to be a large part to be “substantial” for the purposes of copyright law.
Accordingly, a reproduction of a very small amount of the work could be considered “substantial” if the part in question was critically important.
There are no strict guidelines about the quantity of material, or percentage of a work, which may be used without the copyright owner’s permission. Each situation needs to be assessed on its own facts and ultimately subject to interpretation by the Courts.
Remedies for Copyright Infringement
A copyright owner has the right to apply to Court:
requesting an injunction;
for damages – being a sum of money intended to compensate the copyright owner for money lost, or spent;
on accounts of profits – to account of profit made by the infringer through selling infringing copies;
for other orders,
in respect of infringement.
In more extreme situations involving commercial dealings/piracy, infringement of copyright can amount to a criminal offence, with possible jail and/or penalties.
Defences to allegations of Infringement
Even though a substantial part of copyright material has been used (without permission), there may be a defence or an exception to the infringement provisions in the Copyright Act 1968, for instance:
Research - a person may use a 'reasonable portion' of a literary, dramatic or musical work for research or study;
News and reporting;
Artistic works in public places; and
Also, just because person B has created a work that is very similar to person A’s work does not automatically mean there has been an infringement. For example, if the similarities are purely coincidence and person B has not copied person A’s work, then there is no copyright infringement. Accordingly, for copyright infringement to occur, there must be:
similarity between the two works in question; and
a causal link – that is, evidence that person B actually copied person A’s work.