Client Resources
Intellectual Property - Copyright
What is Copyright?
Copyright is the exclusive legal right to protect the form of the expression of ideas.
Copyright is free and applies automatically when the work is created – there is no registration system for copyright in Australia.
Copyright does not protect ideas themselves, information, styles or techniques, names, titles, slogans, or works that have not been reduced to material form.
There are no general exemptions from copyright law for not-for-profit organisations.
Copyright - What does it protect?
Copyright protects original works such as:
- literary works (e.g. computer programs, letters, poems),
- artistic works (e.g. paintings, drawings, photographs),
- dramatic works (e.g. choreographed shows, script for a film), and
- musical works (e.g. musical compositions).
Copyright also protects ‘subject matter other than works’, such as:
- cinematographic films and sound recordings,
- broadcasts, and
- published editions.
Copyright - Who owns it?
The owner of copyright in particular works will depend on the type of works and any agreements that operate to alter the 'first owner' rules contained in the Copyright Act 1968 (Cth) ("Copyright Act").
Literary, dramatic, musical or artistic works
The first owner of the copyright in literary, dramatic, musical or artistic works ("Works") will be the author of the Works unless an exception applies.
One such exception is where an employee creates the Works in the course of their employment. In that case, the employer will be the owner oft he associated copyright. Notably, there is an alteration to this exception where the employee is employed as a journalist.
Another exception arises when one of the following Works in commissioned in exchange for payment of a fee:
· a photograph taken for domestic or private use,
· a painted or drawn portrait, and
· an engraving.
In these cases, the copyright subsisting in the Works will be owned by the person who commissioned it.
Films and sound recordings
The person who is the maker of a film (i.e. the person who arranges for its production) will be the default owner of the copyright subsisting in that film unless the film is commissioned (the maker has entered into an agreement to make the film for another person in exchange for a fee). When a film is commissioned, the commissioning part will be the owner of the copyright.
The same principles apply in respect of sound recordings. The ‘maker’ of the sound recording could be, for example, a recording company.
In some circumstances, a performer who contributes to the sounds captured in a sound recording may also share in the copyright ownership.
Broadcasts
The owner of the copyright that subsists in a television or sound broadcast is the maker of the broadcast. For copyright to subsist in an Australian broadcast, it must be made under a relevant broadcasting licence or by the Australian Broadcasting Corporation ("ABC") or the Special Broadcasting Service ("SBS").
Published editions
The owner of the copyright in a ‘published edition’ will be the publisher.
The Crown
Despite the above, the copyright in any Works, sound or film recordings made by, or under the direction of, the Crown will be owned by the Crown.
Moral Rights
Individual creators have moral rights, whether or not they own copyright. These are the rights to:
- be attributed as the creator of the work,
- take action if their work is falsely attributed as being someone else's work, and
- take action if the work is distorted or treated in a way that is prejudicial to their honour or reputation.
Importantly, moral rights are non-economic personal rights and are not transferrable.
Key takeaways
NFPs should ensure that they have the appropriate agreements in place to properly assign the copyright in any Works or recordings produced by third parties and gain the consent of any moral rights holders in relation to Works or other materials.
Need help navigating the law?
We exclusively support charities and NFPs and as such have a specialised and in-depth knowledge of the practical legal, regulatory, and governance needs of charities and NFP organisations.
Contact us today to review your privacy compliance and ensure you are up to date.
Call us on 07 3160 0010, email reception@nfplawyers.com.au, or submit a contact form to arrange a consultation.
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