Copyright Fact Sheet - updated May 2010
What is Copyright?
Copyright is a set of exclusive rights exercisable by authors or creators of original works. These exclusive rights include the right to reproduce, distribute or adapt a work.
A primary principle in copyright is that there must be actual infringement. That is, an independently created work that is similar or the same to an existing work will not infringe on the exclusive rights of the author of the existing work. This differs from the concept of patents where a patent allows total protection from infringement, even if it is copied without knowledge. 1
One of the main requirements for a copyright to exist is that the law does not go as far to protect ideas but rather the means to protect that idea. For example an idea for a movie is not protected until it has been filmed.
An example of this is the case of Donoghue v Allied Newspapers Ltd. Concerning a series of interviews given to a journalist by a famous jockey it was held that he did not gain a copyright over the information given in the interviews as they did not take any tangible form. Justice Farwell expresses this by stating 'it is not until it is...reduced into writing, or into some tangible form, that you get any copyright at all.' It is stated that this does not cover 'the idea, however brilliant and however clever it may be, is nothing more than an idea.'2
Such a narrow definition has been expanded within the Copyright Act of 1968 to encompass works which are unpublished.
S32 states that a copyright exists 'in an original literary, dramatic, musical or artistic work that is unpublished and of which the author...was a qualified person'3 where a qualified person is defined as an 'Australian citizen or a person resident in Australia'4
It is important to note that a number of copyrights can exist over a single piece of material. A song for instance, can contain a copyright over the words, the music and their overall arrangement.5
It must also be mentioned that the object must be the 'result of some skill and effort' hence the persons original work and not simply copied from another source.6
Legislation
The primary piece of legislation that governs copyright is the Copyright Act 1968 (Cth).
Protection of something under this act is said to occur when the person alleging protection successfully fulfils the criteria set out within the act.
Part III of the act protects what is known as 'literary, dramatic, musical and artistic works'
Part IV of the act covers 'subject matter other than works' which covers:
- 'sound recordings' s85
- 'cinematographic films' s86
- 'television broadcasts and sound broadcasts' s87
- 'published editions of works' s88
Limitations to copyright
Under the Copyright Act, certain limitations have been placed where the protected work can be, in a way duplicated, without that person or organisation being liable for copyright infringement.
This is governed by Division 3 of the act where the following situations are seen not to incur liability issues
- Adaptation 'for the purpose of research or study' s40
- 'for the purpose of criticism or review' s41
- 'for the purpose of parody or satire' s41A
- 'for the purpose of reporting news' s42 or,
- 'for purpose of judicial proceedings or professional advice' s43
Registration
In Australia, there is no need for registration of the material for it to be protected. When the object is created it automatically falls under the protection of the Copyright Act.7
Duration
Most copyrights last 70 years from either it was first made public or from the end of the creators death.8
Infringement
The guidelines for infringement of copyright are set out in Division 2 of the act in relation to works and Division 6 relating to 'subject matter other than works' and finds infringement where person 'not being the owner of the copyright...does in Australia, or authorises the doing in Australia of, any act comprised in the copyright.'9
Current issues of copyright
Indigenous protection
Protection of indigenous works is an area of contention. There are two main obstacles to copyright applying to indigenous work. Firstly is the issue of time. It may be that indigenous cultural property falls outside of a copyright period.10 Secondly, is the issue of whether the object of contention is tangible. Such an abstract claim to protect an entire culture would not fall within the sections of the Copyright Act relating to 'works' or 'subject matter other than works.' For example, if an artist utilises a style of artwork which mimics a style used by a Aboriginal group, if the artwork is not the same as a specific piece then it will not be protected. Overarching protection of an style is too broad to be protected.11
Internet piracy and copyright
Internet piracy has become a largely debated topic particularly as to whether internet service providers can be held liable for the infringements of their customers. A contemporary example is seen within the recent case of Roadshow Films v iiNet Limited.
This case involved whether iiNet could be held liable for activity by its customers whom were utilising a computer program called Bitorrent. For the Court, the critical issue "was whether iiNet, by failing to take any steps to stop infringing conduct, authorised the copyright infringement of certain iiNet users." To determine whether this was the case, the Court had to first determine whether or not any of iiNet's users infringed copyright: the Court found that some of iiNet's users had infringed the plaintiff's excluse rights, though not so many users as the plaintiff's alleged. The next question was whether or not iiNet authorised those infringements. The Court then held that iiNet did not authorise the infringements because (i) iiNet does not supply the 'means' of infringement simply by supplying internet access, (ii) that a scheme for notification, suspension and termination of customer accounts is not, in this instance, a relevant power to prevent copyright infringement pursuant to s 101(1A)(a), and that iiNet "simply cannot be seen as sanctioning, approving or countenancing copyright infringement" because iiNet "has done no more than to provide an internet service to its users." Therefore, the Court held that iiNet could not be held liable for infringements by its customers.
Legislation
Copyright Act 1968 (open external site)
Resources
Australian Copyright Council's Online Information Centre (open external site)
Copyright Agency Limited (open external site)
1 Rocque Reynolds and Natalie Stoianoff Intellectual property: text and essential cases (3rd ed, 2008) 18 ↑
2 Donoghue v Allied Newspapers [1937] 3 All ER 503, 507 ↑
3 Copyright Act 1968 (Cth) s32 ↑
4 Copyright Act 1968 (Cth) s32(4) ↑
5 Fitzroy Legal Service (open external site) ↑
6 Australian Copyright Council (open external site) ↑
7 Australian Copyright Council (open external site) ↑
8 Australian Copyright Council (open external site) ↑
9 Copyright Act 1968 (Cth) s37 and 101 ↑
10 Rocque Reynolds and Natalie Stoianoff Intellectual property: text and essential cases (3rd ed, 2008) 261 ↑
11 Rocque Reynolds and Natalie Stoianoff Intellectual property: text and essential cases (3rd ed, 2008) 261 ↑
12 Roadshow Films Pty Ltd v iiNet Ltd (No 3) (2010) 263 ALR 215, 358 ↑
13 Ibid, 374 ↑
14 Ibid, 493 ↑
