Businesses of all sizes must understand copyright requirements to ensure work is secure and minimise the risk of infringing another’s property.
Copyright protection in Australia is easily demystified — the following seven tips will give you a great foundation.
Remember: none of this information should be construed as legal advice. Always seek out a qualified professional in relation to your own circumstances.
1. Copyright protection in Australia is automatic
In Australia, there’s no mechanism to register your interest in copyright.
Copyright protection will automatically apply once the subject matter is committed to material form (e.g. put in writing or drawn on paper) provided it satisfies the requirements for obtaining copyright protection (see point 2).
If you’ve been informed you need to register your copyright, this information is most likely based on another jurisdiction, such as the United States, where a system for registering copyright exists.
2. The requirements for copyright protection
To be eligible for copyright protection, the subject matter must be original.
A sufficient level of labour and skill must also have been expended in its creation. If you’ve copied someone else’s material without permission you can’t claim copyright over that material (and you should watch out incase they come after you!)
Similarly, if the subject matter is too simple – i.e. a drawing of a circle — it won’t be afforded protection under copyright law.
3. Using the © symbol
A work that doesn’t bear the © symbol is still protected by copyright law (assuming it satisfies the other criteria).
However, using the © symbol is an easy (and free!) way of letting others know you’re claiming copyright over the subject matter.
4. Length of copyright protection
The term of copyright protection is generally for the life of the author plus a further 70 years after the author’s death.
Just because a song or book is old, it’s not necessarily free to use.
You may still need to get permission or pay a royalty to the author’s estate.
5. How much is too much?
Another party doesn’t have to copy the entirety of your work to be liable for infringement.
Under copyright law only a ‘substantial part’ needs to be reproduced and this is assessed qualitatively, not quantitatively.
A recent and well known example is the case of the Men at Work song ‘Down Under’, which was found to have reproduced a substantial part of the song ‘Kookaburra sits in the old gum tree’ in a couple of lines of their song.
Just because you’ve paid another party to create work or material for you doesn’t mean that ownership of the material is vested in the commissioning party and that you have a legal licence to use the material for the purposes for which they were created.
Ownership depends on the relationship between the parties and an agreement transferring ownership of the IP to you may need to be executed.
7. Independent creation
In the same way that your material must be original to be protected by copyright, if another party has independently created a substantially similar material, they will not be liable for infringing the copyright in your material.
Of course, inferences of copying may be drawn where material is absolutely identical or too substantially similar to be coincidental and it can be shown that the other party had access to your material at some point in time prior to the creation of their material.
Devita Pathi is an intellectual property lawyer and trade mark attorney. She has over 7 years experience in the legal profession. She is the author of numerous articles including an award winning article on copyright and design laws. Devita has a particular interest in assisting small and start-up businesses to identify, protect and commercialise their intellectual property.