Can I claim copyright?
It is possible that you or your business creates material over which you could claim copyright for example, you may create a logo, newsletter, drawings or designs.
If you do, then you are likely the owner of original copyright which affords you protection against others using or infringing that copyright in certain circumstances.
We find that copyright is not that well understood and that many Australian businesses might be missing out on opportunities to claim. Here are 9 facts you should know when it comes to copyright law in Australia:
1. What types of creative work are covered by copyright?
Copyright provides you with the exclusive right to control the use of your creative work. The type of creative work it protects includes novels, drawings, illustrations, engravings, blueprints, maps, musical scores, radio and TV broadcasts, photographs, graphic design (including digital files and audio recordings) and house plans. In Australia, for a creative work to be copyrighted it must be in material form (electronic or hard copy) and have a sufficient connection to Australia. The protection afforded includes exclusive economic rights for a limited time to deal with their creative works. Copyright in artistic works lasts 70 years from the date of first publication, 50 years for radio and television broadcasts and 25 years for published editions.
2. What types of creative work are not covered by copyright?
Generally (with only a few exceptions), copyright law does not protect ideas, styles, concepts or techniques. For example, the “look” or “feel” of a published work, such as a newsletter, is unlikely to be protected by copyright.
3. When creative work is commissioned, who owns the copyright?
Company or business newsletters, drawings, logos, photographs and other visual images will be protected by copyright. However, if your company commissions a design from a graphic artist, that artist may own the copyright in your newsletter or website designs (unless you have an agreement to the contrary). This will likely restrict your ability to use and reproduce those graphic images to what you have agreed with the copyright owner. When you are in doubt about who owns the copyright always consult a copyright lawyer.
4. Can copyright be co-owned?
Home building plans are another area where copyright issues arise. If you wanted to use a plan in a brochure as the basis for your residential house design, you would need permission from the copyright owner of the plan in order to reproduce important or distinctive parts of it. If you are paying a builder to draw up house plans based on your ideas and sketches, the builder will likely own the copyright as he or she is the person who actually drew the finalised plans. At best, under copyright legislation, you may be a co-owner of copyright with ownership of the ‘underlying rights’. If you then ask another builder to build your house, you would have to ask the first builder if you could use those plans as he or she has copyright in them.
5. Can copyright be assigned, licensed, sold or passed on?
Usually, a person’s exclusive rights are to reproduce, display the work in public and make adaptations. The Copyright Act 1968 states that copyright can also be dealt with in the same way as personal property. It can be assigned, licensed, sold, left by Will, or passed on according to intestacy or bankruptcy laws. When you grant a copyright licence, you are giving permission for the licensee to use your copyright in specified ways or you may transfer your rights to someone else entirely. Normally, you would have an agreement in place to govern this process so that everyone’s rights and obligations are clear.
6. When does copyright infringement occur?
Copyright infringement occurs whenever another person makes copies or exploits a work commercially without the copyright owner’s permission. There must be a “substantially similar” reproduction for infringement to occur. The subsequent work must be copied from the first work creating a very similar work independently does not constitute infringement.
7. What happens when I can prove copyright infringement?
If you can prove copyright infringement, there are various avenues of redress. Firstly, you could seek an injunction from the Court restraining the person or company from reproducing the original work. You could seek an order from the Court to enter the person’s premises and seize the offending material. Alternatively, you could file a claim for damages, an account of profits or delivery up of the infringing article/s. Various courts have jurisdiction to hear copyright actions.
8. Is copyright the same as trade mark protection?
Copyright differs from trade mark protection. A trade mark is used to distinguish the goods and services of one trader from those of another. A trade mark is a right that is granted for a letter, number, word, phrase, sound, smell, shape, logo, picture and/or aspect of packaging. For example, Cadbury Schweppes have a trademark on the specific purple colour of their wrapping. A registered trade mark is legally enforceable and gives you exclusive rights to use, licence or sell the goods and services that are subject to registration. Unlike trade mark protection, there is no system of registration for copyright protection in Australia – it is free and automatic. However, whilst there are no registration requirements in respect of copyright, where possible, you should place a label or symbol on your work to indicate your copyright in the materials.
9. How does copyright differ from design and patent protection laws?
Copyright law also differs from design and patent protection law. The visual appearance of manufactured articles with an industrial or commercial use can be a significant commercial asset. They can be protected by registering the design or invention with IP Australia. In order to register, the visual appearance must be new and distinctive. An example of protected designs are Speedos® and folding chairs. After registration, the owner of the registered design or patent, has exclusive rights for a limited time, in return for the public disclosure of the design or invention.
The new Personal Property Securities Register commenced on 30 January 2012. It allows you to register your security rights in intellectual property on the Register as well as applying for registration with IP Australia’s official Registers.
If you have any questions about copyright law, The Copyright Act, and protection against it, or your business’s intellectual property security interests, please do not hesitate to contact our Commercial Litigation Team.
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