An Outline of Australian Copyright Law

Copyright protects works that are creative and involve thought and skill. It protects the way in which an idea is expressed and not the idea itself. Copyright gives the owners of works protected by copyright the right to control the ways in which the work can be exploited.

In Australia, copyright protects most creative output. To attract copyright protection the output must satisfy three criteria:
* it must be original in the sense that it has not been copied from an existing work;
* it must be the product of some skill an labour (but the skill and labour need only be slight); and
* it must be recorded in a tangible form.

The Copyright Act 1968 (Cth) categorises creative work as "works" and other subject matter. The term "works" covers:
* Literary works - (which includes computer programs) - A literary work does not have to have any intrinsic literary merit. The term covers novels, poems, scripts, instruction leaflets, labels, packaging, business plans and various other business documents, tables or compilations expressed in words, figures or symbols, computer programs (the term "computer program" is defined as as, a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result). Generally a name or word (even if made up) will not be a literary work as coming up with the name is not considered to a sufficient exercise in skill.
* Dramatic works - A dramatic work must have sufficient unity to be capable of being performed. The term is defined to include a a choreographic show or other dumb show (eg, a mime) and scenario or script for a cinematographic film. To classify as a dramatic work, the work must have unity which allows it to be performed.
* Musical works - This covers the music exclusive of any words or actions intended to be sung, spoken or performed with the music. The lyrics are protected as a literary work.
* Artistic works - This term is defined to mean a painting, sculpture, drawing, engraving or photograph, building or model of a building and works of artistic craftsmanship. Artistic quality is not required except in relation to works of artistic craftsmanship. Circuit layouts are excluded as these are protected by the Circuit Layouts Act.

From the above, it is clear that copyright protects both two dimensional works (eg, paintings, drawings and photographs) and three dimensional works (eg, sculptures, models, and works of artistic craftsmanship). A two dimensional work may be entitled to protection under both design and copyright regimes. This will depend on whether it qualifies for design registration. A three dimensional work could lose copyright protection simply through use. It may therefore be necessary to seek design registration in order to obtain any protection.

Compilations also raise particular issues. Although specifically covered as a literary work, a recent Australian case involving Telstra's White Pages and Yellow Pages directories castes doubt over the position of compilations that are produced by persons who cannot be identified using highly computerised systems. In that case, the judge concluded that none of the people who Telstra claimed were authors of the directories had exercised "independent intellectual effort" or "sufficient effort of a literary nature" in creating the directories. The judge also stated that the creation of the directories did not involve some "creative spark or the exercise of the requisite "skill and judgment".

The other subject matter covers:
* Sound recordings - This term is defined to mean the aggregate of sounds embodied in a record.
* Cinematographic films - This term is defined to mean the aggregate of the visual images embodied in an article or thing so as to be capable by the use of that article or thing of being shown as a moving picture or of being embodied in another article or thing by the use of which it can be so shown including the aggregate of sounds embodied in a sound track associated with the visual images.
* Television broadcasts and sound broadcasts - This term "television broadcast" is defined to mean the visual images broadcast by way of television together with any sounds broadcast for reception with the images. The term "sound broadcast" is defined to mean sounds broadcast other than as part of a television broadcast
* Published editions of works - This refers to the way a work looks rather than the contents of the work. Specifically it refers to the typographical arrangement or layout of a literary, dramatic or musical work. It applies to the whole work and not individual parts of it. For example, it will protect an entire book of short stories but the not the individual short stories but each individual story will be protected as a literary work.
The underlying literary, musical, dramatic and artistic works continue to exist and have protection independently from the combined material.

Copyright protection arises automatically. As there is no registration or other prerequisite for the existence of copyright protection, it is important to keep signed and dated originals of copyright works or records of creation and ownership of copyright works so that subsistence and ownership can be used if required. It is common practice to include © symbol, the year of creation and name of the person claiming ownership of the copyright. There is no legal requirement to include all or any of this information. However, it is useful as an assertion of ownership subsistence and the year of creation.

For literary, dramatic, musical and artistic works, the general rule is that the author of the work is the first owner of the copyright in the work. The principal exception to this is work created during the course of employment in which case, the author's employer is the first owner of the copyright unless the employer and employee have come to another arrangement. This means that a consultant who is commissioned by a client to create a work will be the first owner of the copyright. However, copyright in portraits, engravings and, in some instances, photographs are owned by the person who commissioned the work (and not the person who created the work). It is possible to transfer ownership of the copyright from the consultant to the client. Under Australian law, the transfer must be effected in writing and it must be signed for or on behalf of the person transferring ownership of the copyright.

For other works, the following applies:
* Sound recording - The general rule is that the person who owns the recording medium (the master) (ie, the person who paid for the recording to be made) is the first owner of the copyright in the sound recording. Special provisions apply to sound recordings of live performances were introduced with effect from 1 January 2005. The provisions provide that the first owner of the copyright in a sound recording are the person who owns the master and the performers. An exception applies in the case where an employer makes a recording of an employee performing during the course of the employee's employment - in this case, the employer will be the sole owner of the copyright in the sound recording unless the employer and the employee enter into an agreement in relation to the employee's ownership of copyright in the sound recording. In relation to sound recordings made before 1 January 2005, performers have very limited rights and they cannot exercise their rights if the exercise would interfere with the rights of the person who was the sole owner of the copyright before 1 January 2005. The copyright in the sound recording only relates to that sound recording - works incorporated into the sound recording (eg, the music and lyrics) must be considered separately. Therefore, if a person commissions the making of a sound recording, but the agreement does not specifically deal with copyright ownership, the person commissioning the sound recording will own copyright in the sound recording, but not in the music or lyrics.
* Cinematographic film - If a person agrees to make a film for another person in return for payment (or some other benefit), the person who commissioned the film will own the copyright in the film unless some other agreement about ownership of copyright has been made. In other circumstances, the first owner of copyright is the person or company which made the arrangements for the making of the film. The copyright in the film only relates to the moving images and sound - works incorporated into the film (eg, the screenplay and the music) must be considered separately. Therefore, if a person commissions the making of a film, but the agreement does not specifically deal with copyright ownership, the person commissioning the film will own copyright in the combination of moving images and sounds, but not in the screenplay or the music.
* Television and radio broadcasts - The broadcaster is the owner of the copyright in the broadcast. Works incorporated into the broadcast (eg, the film television programme for a television broadcast and, eg, the music for a radio broadcast) must be considered separately.
* Published editions - The publisher is the owner of the copyright in the published edition. Works incorporated into the published edition (eg, a short story, poem, drawing) must be considered separately.
It is possible to have two or more authors and owners of a copyright work.

The duration of copyright varies depending on the work or material:
* Literary, dramatic, musical and artistic works - 70 years after the year in which the author dies or 70 years from the end of the year the material was first made public. Material protected for 70 years after first publication includes works first published anonymously or under a pseudonym (where the author cannot be identified), works first published after the creator's death, recorded sounds, and films made since 1 May 1969. Material made for, or first published by, a Commonwealth or State government department or agency is protected for 50 years from making or 50 years from first publication.
* Sound recordings - 70 years after the year in which the film was first published
* Cinematographic films - If a film is made by an Australian citizen, an Australian resident or an Australian company, copyright subsists until publication of the film and then for 70 years after the year in which the film was first published. If the film was first published in Australia, copyright subsists for 70 years after the year in which the film was first published.
* Television and radio broadcasts - 50 years after the year in which the broadcast was first made. A television program repeated after the copyright period does not acquire a new period of copyright protection.
* Published editions - 25 years after the year in which the edition was first published.

A copyright owner has exclusive right to do certain acts. The copyright owner can decide how to commercialise the rights - eg, the copyright owner can either exploit the rights himself or herself or license others to do so. The copyright owner can restrain others from infringing the owner's copyright. The rights of the copyright owner vary depending on the subject matter.
* Literary, dramatic or musical work - The rights are reproducing, publishing, performing the work in public, communicating the work to the public, adapting the work and renting a copy of the work which is reproduced in a sound recording (this does rental right does not apply to computer programs). The owner of copyright in a computer program is also entitled to rent a copy of the program..
* Artistic work - The rights are reproducing, publishing and communicating the work to the public.
* Sound recording - The rights are copying, causing the recording to be heard in public, communicating the recording to the public and renting the sound recording.
* Cinematographic films - The rights are copying, causing the film to be seen or heard in public and communicating the recording to the public.
* Television and radio broadcasts - The rights in relation to a television broadcast include: the right to make a film of the images in the broadcast or to make a copy of the film; the right to make a sound recording of the sounds included in the broadcast or to make a copy of the sound recordings; and a right to communicate the broadcast to the public. The rights in relation to a radio broadcast include: the right to make a sound recording of the sounds included in the broadcast or to make a copy of the sound recordings; and a right to communicate the broadcast to the public.
* Published editions - The copyright owner is given the exclusive right to make a facsimile copy of the edition.

Authors of copyright material also have moral rights in relation to the works they create. In very simple terms, moral rights are the right to be identified as the author of a work, the right to object to distortions of the work and the right to object to mutilations of the work.

A copyright owner of work which has an access control technology measure is entitled to prevent persons from manufacturing circumvention devices, distributing circumvention devices or providing services to circumvent an access control measure. Further, if a copyright owner has included electronic rights management information, the copyright owner can prevent persons from removing or altering that information.

Copyright only protects the form in which the idea is expressed, not the idea itself. This means that another person can express the same idea in a different way. In addition, copyright does not give protection where an identical work has been created independently.

There are two types of infringement:
* Primary infringement - This occurs when a person does or authorises another person to do any of the exclusive rights of the copyright owner without the licence of the copyright owner.
* Secondary infringement - This is mainly concerned with dealings in infringing works or facilitating the production of infringing works.

Primary infringement has two elements:
* Causal connection -If two works are substantially the same but were created independently, the work created later will not infringe the copyright in the earlier work. It is not necessary for a person infringing a work to know that he or she is actually doing an act which constitutes an infringement of copyright. The performance of the infringing act (eg, copying) can be subconscious. However, a work need not be copied directly - eg, a person following instructions may create a work that infringes a prior work even though the person following the instructions might never have seen the earlier work. Copyright in a work is infringed only if the work is actually copied.
* Copying of a substantial part - Infringement can occur if the whole work is copied or a "substantial" part of the work is copied. What constitutes a "substantial part" is a qualitative assessment rather than a quantitative assessment.

Secondary infringement - Secondary infringement encompasses possessing, selling, exhibiting or distributing infringing copies or importing infringing copies into Australia where the alleged infringer knows or ought reasonably to have known that the infringer is dealing with an infringing copy. Therefore, unlike direct infringement, it is necessary to show that the alleged infringer knows or has reason to believe that he or she is dealing with an infringing copy. The copyright in a literary, dramatic or musical work is also infringed by a person who permits a place of public entertainment to be used for the performance in public of the work, where the performance constitutes an infringement of the copyright in the work.

Certain acts are not considered to be copyright infringement. The permitted acts include:
* fair dealing for research or study;
* fair dealing for criticism or review;
* fair dealing for parody or satire;
* fair dealing for news reporting;
* reproduction for public administration such as use in parliamentary or judicial proceedings;
* reproduction for the purposes of giving professional advice;
* temporary reproductions;
* reproductions for private use;
* inclusion in and distribution by libraries;
* incidental inclusions;
* time shifting of TV programmes for private use; and
* format shifting of sound recordings for private use.

Further acts are permitted for specific classes of works (eg, computer programs).

A work published on the internet can be transmitted, downloaded and digitally manipulated anywhere without the copyright owner's permission. Consequently, a copyright owner must consider the consequences of displaying copyright material online. The fact that material is available online will imply a permission to access the material but it does not of itself imply a permission to do any other acts with the material. Therefore, when displaying material online, a copyright owner should give specific consideration to the rights the owner wishes to grant those who access the material and include terms and conditions on its website which state clearly the uses which the owner will permit.