The law with respect to copyright in Australia is contained in the Copyright Act 1968 (Cth) (‘Copyright Act’). The purpose of the Act is to provide protection to a range of works, both artistic and otherwise, from unauthorised reproduction.
The range of subject matter that is protected under the Copyright Act is extremely broad and covers:
- ‘original literary, dramatic, musical and artistic works’ (Part 3 of the Act) such as books, poems, musical compositions, choreographic shows, paintings, and sculptures, and
- ‘subject matter other than original works’ (Part 4 of the Act) such as sound recordings, films, television broadcasts, radio broadcasts, and published editions of works.
Under s 32 of the Copyright Act, in order for copyright to subsist in a work, a number of elements must be satisfied.
The work must have been created in its entirety by the author; an author can have been inspired by previous sources and material but the work itself cannot in any way replicate another work. The author must have used a significant degree of skill, labour, and knowledge in expressing the work in material form.
An artist could have studied the brush technique and colour palette evident in one of van Gogh’s paintings and used these techniques to create an entirely new work without infringing van Gogh’s original composition, whereas copying the painting in its entirety requires no original thought and would constitute infringement. The main concept to understand is that copyright does not seek to protect the original idea behind a work but the work itself in its material form.
For copyright to attach to a work in Australia, there must be a connection between the work and Australian law. Though there are several ways this might occur, evidence of just one will be sufficient.
For unpublished works, the author must be an Australian citizen or resident when the work was first made. If creating the work took a significant amount of time, the author must have been a citizen or resident for a substantial part of the creation period.
For published works:
- the material must have been published in Australia first,
- the author must have been an Australian resident or citizen, or
- if the author died before first publication of the work, they must have been an Australian citizen or resident immediately prior to their death.
In material form
The work must have been reduced into writing or another form of storage which would allow the work to be reproduced.
Where a musician writes an original composition on manuscript, this will constitute being reduced into material form.
Where an original digital photograph is saved on a USB stick, this will constitute material form.
It should be noted that s 29(1)(a) of the Copyright Act states that ‘publication’ means that the work has been supplied to the public in its entirety, by sale or otherwise.
In order for copyright to subsist in a film or sound recording:
- it must have been published – this occurs when the film has been ‘sold, let on hire, or offered or exposed for sale or hire to the public’
- the author must have been an Australian citizen or resident, or
- the film must have been made in Australia.
In order for copyright to subsist in a television broadcast it must have been:
- broadcasted from a place in Australia
- authorised by licence given under the Broadcasting Services Act 1992 (Cth), or
- made by the ABC (Australian Broadcasting Corporation) or SBS (the Special Broadcasting Service Corporation).
In order for copyright to subsist in a published edition of a work it must have been:
- first published in Australia, or
- the publisher of the edition must have been an Australian citizen or resident.
It is important to note that there is no originality required for copyright to subsist in subject matter other than works.
Out of all intellectual property law regimes within Australia, copyright provides protection over the longest period.
Currently, the periods over which relevant material is protected by copyright in Australia are as follows:
- works – 70 years commencing at the end of the calendar year in which the author died (s 33 Copyright Act)
- film and sound recordings – 70 years commencing at the end of the calendar year in which the recordings were initially published (ss 93-94 Copyright Act)
- television and sound broadcasts – 50 years commencing at the end of the calendar year in which they were first published (s 95 Copyright Act), and
- published editions – 25 years commencing at the end of the calendar year in which they were first published (s 96 Copyright Act).
The law relating to copyright in Australia provides that, if an author’s work or material is infringed (the material is copied without authority), the author may commence an action against the alleged infringer. The main remedies that will be available will be the grant of an injunction (to stop the copying), damages (monetary compensation) and/or an account of profits (if the infringer has obtained any material gain from the infringement).
Q: Do I own the copyright to a recording I make of a band performing at a live venue?
The short answer is yes. The right in respect of a recording as outlined previously is a separate right to that of the song itself that subsists in the recording. However, the Copyright Act provides a right to ‘co-ownership’, which means that both you and the performer will have equal rights of ownership with respect to the copyright that subsists in the recording.
That being said, this practice is not recommended. The performer has additional rights with respect to sound and video recordings which provide that a person cannot make a recording of the performer’s live performance without prior permission. If a person makes an unauthorised recording, a performer can commence an infringement action against that person. In addition, the copyright owner of the original song that subsists in the recording can enforce their rights with respect to the unauthorised recording.
Q: Do I need to put © followed by my name and year to establish copyright of my work?
No. All that is required is proof of when the work was reduced to material form. Previously, under the Universal Copyright Convention, the notice established by the symbol © was required; however, currently its use is irrelevant. Further, use of the copyright symbol is not considered definitive proof of ownership.
This article reflects the state of the law as at 18 May 2016. It is intended to be of a general nature only and does not constitute legal advice. If you require legal assistance, please telephone 1300 636 846 or request a consultation at gotocourt.com.au.