Copyright is pervasive in the modern world. Advertisements, news reports, podcasts, music, internet sites, the contents of your diary and potentially even your to-do lists can all attract the protection of copyright law. However, despite being so pervasive, copyright is frequently misunderstood.
Many people’s understanding of copyright stems from United States centred discourse on copyright law which, while similar to Australian copyright law, is not identical.
This article reviews five commonly held beliefs about copyright law which are actually myths and highlights key recommendations for businesses in Australia.
Myth #1: Copyright protects ideas
One of the fundamental rules of copyright is that it does not protect ideas themselves, only the expression of those ideas.
This was decided at least as far back as 1908 in the English case of Tate v Fullbrook (1908) 1 KB 821. In that case, two music-hall sketch comedians both performed a skit which had a nearly identical gag involving a firework. In his judgment, Lord Justice Vaughan Williams commented that an artist who suggested the topic of a skit to another artist would not be protected by copyright if the other artist were to take the initiative to perform it first.
Business recommendation:
If you have an innovative concept, be mindful of who you share it with. Consider whether copyright will apply to your work or whether you need to explore other forms of IP protection.
Myth #2: Anything can be copyrighted
Copyright is a subset of intellectual property law. Some forms of intellectual property will fall within copyright, however others will be subject to different regimes. In Australia, there are only eight types of media that can attract copyright protection:
- Literary works
- Dramatic works
- Musical works
- Artistic works
- Sound recordings
- Films
- Broadcasts
- Published editions
If you are a fashion or jewellery designer, you would have copyright over any sketches or concept art you produce but your end product would not be protected by copyright – you would instead need to look to the regime under the Designs Act 2003 (Cth) to register your works. Makeup artists have also struggled to get copyright protection in the past. Adam Ant was unable to copyright his distinctive face paint as an “artistic work” (Merchandising Corporation of America Inc v Harpbond Ltd [1983] FSR 32). The band KISS resorted to trademarking their face paint designs as copyright would not protect their distinctive looks.
There is also a requirement that a work be “substantial” enough to attract copyright protection. Generally speaking, you cannot copyright names or slogans (although you can try to obtain trademark protection of these). There must also be some degree of creative labour – you cannot copyright facts but you might be able to gain copyright protection over the way you arrange a set of facts.
Business recommendation:
Understand the type of intellectual property protection your business assets require to ensure they are legally secured.
Myth #3: The author owns the copyright
As you may know from the many stories of young musical talents who were exploited by the record industry, this is not always the case.
While the “real” author of a creative work will usually own the copyright in that work by default, there are numerous situations where someone else may end up owning the copyright. If an author makes a creative work for an employer, then the employer will obtain the copyright unless the employment agreement between the parties states that the author keeps the copyright.
It gets trickier with movies and records as these are said to belong to their “makers”, which actually means the producers or production company rather than the artists (nine times out of ten, if not more). It really all comes down to the terms of the contract, which is why it is crucial to have a savvy agent or to check with your lawyer before you enter into an arrangement where you may be surrendering your copyright without knowing it.
Having said that, authors do have “moral rights” to their work and these rights cannot be claimed by anyone else. There are only three moral rights recognised in Australia and two are very closely related:
- The right of attribution
- The right to not have a work falsely attributed
- The right of integrity
These give authors the right to obtain proper credit for their work, even if the copyright is owned by someone else, and some protection from people treating the work in a way that would prejudice an author’s “honour or reputation”.
Business recommendation:
Ensure contracts with employees and contractors clearly outline the terms of copyright ownership and usage to avoid disputes.
Myth #4: I have to register my copyright and use the © symbol to get legal protection
You do not need to register a work to obtain copyright. Your work is automatically protected by operation of copyright law when you make a copyrightable expression. This stems from the fact that Australia has ratified the Berne Convention, a longstanding international treaty that guarantees a certain minimum standard of copyright protection. This also means that, with very few exceptions, your copyright here in Australia is internationally recognised (and vice versa).
There is also no need to use the word “copyright” or the © symbol on your work as a declaration that it is protected. This was required under United States copyright law for a work to receive copyright protection up until the United States joined the Berne Convention in 1989.
Some people like to mail manuscripts to themselves so that they can use the postage details as evidence of the date of authorship but this is generally unnecessary in this day and age where everything is digital and dates are recorded in the metadata of your documents.
Business recommendation:
Your copyrightable material is automatically protected. However, maintaining good records will serve you well in the case of any potential disputes.
Myth #5: If I use a work fairly there’s no infringement
This is only partially true. Under United States copyright law, there is the doctrine of “fair use”, which is a general exception that allows people to use copyrighted material to a limited extent without infringing upon the owner’s copyright. Australia does not have the doctrine of “fair use”, although we do have the related concept of “fair dealing”. Fair dealing is narrower than fair use and requires that the use both falls within a recognised category and is fair in the circumstances.
There are four categories of fair dealing but these can be subdivided into seven recognised purposes:
- Research
- Study
- Criticism
- Review
- Parody
- Satire
- Reporting news
If your usage does not fall in one of these categories, you will either have to consider whether another exemption applies (there are many under the Copyright Act 1968 (Cth)) or seek permission before using the copyrighted material.
Even if you do fall into a recognised category, the use still has to be “fair”. Criticism cannot be mere sledging but must involve a considered analysis and critique of the copyrighted work. Parody or satire cannot be used as a façade to simply copy or commercially exploit someone else’s work. If you are studying or researching a book, you are usually limited to copying the lesser of 10% of the total pages or a single chapter. In all cases you still need to give credit to the original author as well. Some cases will be borderline and you should seek legal advice before copying and using copyrighted material.
Business recommendation:
If you are unsure whether your intended use of third-party material or another person’s use of your copyrighted material complies with fair dealing exceptions, you should seek legal advice.
Contact Madgwicks for tailored advice
Every business is unique and copyright advice is often dependent on specific circumstances, such as the type of creative material and the terms of relevant agreements.
If you have any questions regarding copyright that you would like advice on, please don't hesitate to contact us for assistance.
