Copyright Law FAQs

Copyright law assigns exclusive economic rights to the owner of a creative work. It is administered through the Commonwealth Copyright Act 1968. Copyright protects the physical expression of ideas, but does not protect the ideas themselves. Copyright owners are given the exclusive rights to reproduce, communicate, or publish their copyright works. No other person may execute those rights without express permission or licence from the copyright holder.

Copyright protects works, such as literary, artistic, musical or dramatic works, as well as subject matter such as film, audio recordings, published editions and broadcasts. For example, if you have written a book or made a film that is unique and not a reproduction or adaptation of something that already existed, your work is protected by copyright.

Copyright protection in Australia is free and automatically applies to works that meet the requirements mentioned in the previous question. Trademarks and patents, the other two main elements of intellectual property law, both require registration and payment of fees. Copyright is the only intellectual property law that is freely and automatically applied.

Copyright protection generally lasts for the lifetime of the author plus an additional 70 years. So once you have created a work or subject matter, you can rest assured that your creation will be protected from the moment it is published or communicated until long after you pass away.

Copyright protection is automatic, so it doesn’t matter whether or not the copyright symbol is present. It can still be a good idea to place the symbol on your work, along with your surname and the year of publication, as a reminder that the work is protected by copyright. For example, a copyright notice might look like this: © Jones 2011.

If you created something independently, and it meets the requirements of being capable for copyright protection, then chances are that you own copyright to it. However, there are some situations where copyright can belong to someone other than the person who created the work. For example, if:

• You have licensed another party to use your copyright through a clear statement issued in writing;
• If you created the work as part of your regular duties as an employee, or as part of your employment in general, your employer will own the copyright for that work. This applies only to employees, not contractors, freelancers etc.;
• If you have been commissioned to create a work, for example, as a photographer, the commissioner owns the copyright to that work;
• The State owns copyright of any material that was created under the control of direction of the State.

These ownership principles can be modified through formal agreement between parties.

Copyright does not protect ideas themselves, only the material expression of those ideas. Therefore, you cannot rely on copyright law to stop other parties from using your idea unless that idea has already been expressed in material form (a first draft, for example). Instead of copyright law, you may be able to rely on confidential information laws to protect your idea. Under these laws, an individual cannot use or disclose personal information when that information was communicated in confidence, including if you ask them to keep a secret.

You may be able to enter a confidentiality agreement with anyone you may choose to disclose your idea to. This agreement would require the recipient of the information not to use your idea and entitles you to claim damages if they use the idea without permission.

Copyright does not protect ideas themselves, only the material expression of those ideas. Therefore, you cannot rely on copyright law to stop other parties from using your idea unless that idea has already been expressed in material form (a first draft, for example). Instead of copyright law, you may be able to rely on confidential information laws to protect your idea. Under these laws, an individual cannot use or disclose personal information when that information was communicated in confidence, including if you ask them to keep a secret.

You may be able to enter a confidentiality agreement with anyone you may choose to disclose your idea to. This agreement would require the recipient of the information not to use your idea and entitles you to claim damages if they use the idea without permission.

The Copyright Act contains provisions regarding ‘fair dealing’, which seek to balance the interests of the public and copyright owners through allowing members of the public to use copyright material for approved purposes without the need for permission. Use of copyright material for the following purposes may constitute fair dealing:

• Study, research, or education;
• Review, criticism, or news reporting;
• During legal proceedings;
• For satire or parody.

‘Fair use’ applies to copyright material in the United States, and is much more flexible. The concept of ‘fair use’ does not apply in Australia.

So long as the use does not constitute a lawful use or fair dealing, you should act immediately to protect your rights as a delay in action is likely to make the problem worse.

The first step is to make contact with whomever is infringing your copyright. One way of doing this is by issuing a letter of demand stating that you are the copyright owner and that they should cease using your work immediately. Such a letter may also ask for damages. If the letter of demand is ignored, or the response of the infringer is unsatisfactory, you can begin legal proceedings to enforce your rights. An Intellectual property lawyer will be able to provide advice and representation during this stage.