Who owns copyright and when is copyright licensed?
In Australia, copyright is governed by the Copyright Act 1968 (Cth). Copyright refers to the rights that the law gives to creators of literary, dramatic, musical, and artistic works and producers of motion pictures and sound recordings.
Everyone should at least have a basic understanding of copyright law. Particularly for creators (including authors, writers, graphic designers, artists, engineers and architects), copyright can be an area of law that is confusing.
In this article, Farrah Motley, Legal Principal of Prosper Law and a copyright lawyer, explains who owns copyright and when it is licenced to help you understand the basics of copyright law in Australia.
The Copyright Act
Under the Copyright Act 1968 (Cth), copyright owners hold certain exclusive rights, including the right to control the use of work, the ability to make money from and commercially exploit it, the right to reproduce it, and the right to transfer ownership to someone else.
Copyright can provide legal protection by giving the owner legally enforceable remedies where the work is copied and used without permission. A person using copyright without consent infringes the owner’s copyright and may become liable for damages. A copyright lawyer can help creator’s understand what legal remedies they may have.
A creator owns the copyright of the creations. For example:
an author in the case of literary, dramatic, musical and artistic works;
a producer in the case of a film or sound recording; and
a broadcaster in relation to a broadcast.
In fact, there can be multiple owners of creations. For example, in cases where
there are multiple authors
the material was created under an employment relationship
the material was created under a contract
the Crown first published the material
Australian law does not mandate copyright registration because copyright protection in Australia is free and automatic. A copyright owner has the benefit of copyright protection and exclusive rights as soon as the work is created.
In other words, as soon as you create a work of art, write a story, or write down or record a musical composition, the work is granted copyright protection under the Copyright Act 1968.
A creator does not have to do anything else to protect their work; the work belongs to the copyright owner once it is recorded in a tangible form. A copyright owner does not need to register it, apply for it, or pay because the copyright exists in the work once it is created.
Moreover, there is no need to put the copyright symbol © on your work. However, doing so is preferable because:
it reminds others that your work is copyrighted and may discourage unauthorised use
other people can reach out and ask for your permission to use your work
Other measures to protect your work include:
stating the year for which the copyright applies
stating, "All rights reserved."
What does copyright protect?
Copyright protects creative material. There are two categories of material protected by copyright - works and subject matter other than works.
Works include literary, dramatic, musical, and artistic works. In comparison, subject matter other than works includes sound recordings, films, broadcasts, and published editions of works.
Copyright law does not provide legal protection for every kind of work. There are some things copyright does not protect, for example:
material that is in the public domain
material outside the scope of copyright
material protected by other fields of intellectual property law
If you would like to understand what else copyright does not protect, talk to a copyright lawyer.
Copyright protects the creator's rights, being economic rights and moral rights.
Economic rights concern the owner’s ability to make money from the work and include:
reproduction and making copies of the work
distributing copies of the work
performing the work in public
broadcasting or other communication of the work to the public
translating the work into other languages and editing the work
Moral rights, on the other hand, are independent of financial gain and create special rights, which include the following:
right to paternity: the right to anonymity of your work, including
right to integrity: the right to object to changes in your work that harm your reputation or to prevent your work from being used unlawfully
Copyright does not protect ideas
As any copyright lawyer will advise, copyright protects the expression of ideas, not the ideas themselves. Because there is no copyright in an idea. Copyright must be recorded in a tangible form - written or otherwise.
Copyright protect original works
Copyright protects original forms of expression. Work must be 'original' to receive copyright protection. This means that the work:
should not be copied or plagiarised, but created with the author’s skill and effort
does not have to be new, but it has to be original in the sense that it was not copied from another source
must be sufficiently unique to retain the protection of copyright (for example, in an engineering drawing a typical door detail that is used across the industry will not receive the benefit of copyright protection)
A contract can transfer ownership in copyright
Creations are automatically the property of the copyright owner under the Copyright Act 1968 (Cth). Copyright is an intangible asset that gives the author similar rights as other property owners. In fact, copyright can be bought and sold just like other forms of property.
Copyright ownership can be transferred to a third party under a contract known as the assignment of intellectual property. The person who receives the transfer of the copyright becomes the new owner. Intellectual property agreements should be prepared by a copyright lawyer.
Copyright is something different from the tangible object that is the subject of copyright. Buying an item does not mean the new owner of the product becomes the owner of the copyright in that product.
The transfer of the product does not necessarily cause a transfer of the copyright. Creators can sell their work but retain their ownership of it. For example, a painter sells a painting.
The painter retains the copyright in the visual representation of the art (so that the new owner of the painting cannot replicate and sell copies of the painting) even though the painter no longer owns the canvas that displays the artwork.
In other words, creators still have the right to reproduce, publish, or communicate the work that they own the copyright in (and to grant those rights to others). No one can use the copyright without the creator’s permission.
It is important to be clear about what rights you own and retain in the works you create.
Often, contracts (such as a consulting contract, purchase contract or intellectual property agreements) will describe how rights in the copywritten works are sold, transferred or license to the other party. These documents should be prepared by a copyright lawyer.
A contract can grant a licence to use copyright
Creators can licence the copyright they own to a third party, know as the ‘licensee’. With a licence, the third party can exercise some or all of the exclusive rights of a copyright owner.
They can use the copyright in the way described in the licence, but the copyright owner remains the ultimate owner of the work.
There are two main types of licences:
Exclusive licence
The licensee is the only person allowed to use copyright in a specific manner. The copyright owner is barred from using the copyrighted material itself or from allowing others to use that copyright. An exclusive copyright licence is similar to ownership and the difference between an exclusive copyright licence and ownership will depend upon the wording of the intellectual property licence
Non-exclusive licence
The licensee can use the copyrighted material within the scope of the licence. The copyright owner is free to use the copyrighted material itself and to sell and authorise others to use the copyright
Generally, when a copyright licence is granted, a copyright licence agreement or intellectual property agreement is signed. An intellectual property agreement outlines important matters such as how copyright can be used, for how long, in what territory, and who else may use it. An intellectual property agreement should be prepared by a copyright lawyer.
An intellectual property agreement should also state:
who is the owner of the copyright
to whom the right to use the copyrighted work is granted
how the licensee may use the copyrighted material
whether there will be a distribution of profits if the work generates income during the licencing period
whether the licensee can transfer the licence to others (sublicense)
how the licence can be revoked by the owner
how long the licence will last
Like most contracts, a licence may be oral, implied, arise from the conduct of the parties, or be in writing. In other words, you do not always have to enter into a written licence.
However, as any copyright lawyer will tell you, entering into a written licence is advisable so that both parties have a written document to refer back to in the event of a dispute. It also ensures that there is an objective record of what the parties agreed to. Without a written licence, it may not be possible for either party to prove what the terms of the licence were or whether a licence existed in the first place.
By ensuring an intellectual property licence is prepared by a qualified copyright lawyer, the owner can be assured that they retain appropriate ownership and rights to the work.
Sublicence to use copyright
A sublicense is a licence granted by the licensee to a third party and extends some rights or privileges of the licensee to someone else. In other words, in a sublicense, you can grant a licence to another person to use the copyright. Subsequently, the person holding the licence gives some other person a sub-licence to use the same copyright. Because sublicensing can dilute the rights of a copyright owner, it is important to discuss sublicensing with a copyright lawyer.
By means of sub licencing, you can maximise the value of a copyright licence. The licence holder can enable more effective and efficient distribution, provide greater market acceptance, and generate more licencing revenue.
Sublicensing requires prior written permission from the owner. This can be set out in the terms of the original copyright licence prepared by a copyright lawyer. For example, the licence may state ‘The owner grants the licensee the unfettered ability to grant sublicenses on the same terms as this copyright licence’.
However, it may be impractical to permit every sublicense if the nature of the copyrighted work means that there will be a large volume of licences granted. Here Copyright Management Companies can be of some help.
Copyright Management Companies can help you licence your copyright to third parties. They will negotiate your licences, collect royalties, retain a portion of the fees collected as a commission, and then distribute the remainder to the owner.
When signing up with a collecting society, the owner transfers the rights to:
transfer the right to enforce copyright in the work
sell non-exclusive licences to use the work
collect and distribute royalties for work sold
entrust other collecting societies (for example, in other countries) to collect royalties in relation to the work
A licence to use copyright may be implied
An implied copyright license is created by law without an actual contract between the parties. The licensee gets the right to use the copyrighted work only to the extent the owner would have allowed if both had negotiated an agreement.
In fact, implied licenses are used to grant licences when a copyrighted work is created by one party on behalf of another. For example, suppose you commission someone to create a work for a specific purpose, such as an illustration for a book.
At the same time, the artist may own the copyright to the illustration. In this case, you have an implied right to use the illustration in the manner and for the purpose agreed upon when you commissioned it.
Case law relating to copyright ownership
In the case of Hadley v Kemp [1999] E.M.L.R. 589 at 643, it was held that two or more people can own copyright jointly if they are joint authors of copyright material. People are joint authors if their contribution to the work is inseparable from the contribution of each other.
Being recognised as a joint author or co-author requires a person to provide a "significant and original" contribution with the intention that their contributions will be merged into the copyrighted material.
In the case of Bourke v Filmways Australasian Distributors Pty Ltd (unreported, Supreme Court of NSW, 9 October 1979) the Court considered the rights of a film producer.
The court determined that the producer of a film had an implied licence from the writer/director of the film that allowed the producer to distribute the film in circumstances where the parties did not have a written agreement that assigned the copyright in the film to the producer. The producer had an oral agreement with the writer/director that included the fees that the producer was to pay the writer/director.
In the case of De Garis v Neville Jeffress Pidler Pty Ltd (1990) 37 FCR 99; 18 IPR 292, the Court found that freelancers and journalists who submit content to media outlets of which they are not employees, generally grant an implied licence for the media outlet to publish that content.
If you need legal advice regarding copyright protection, you should contact a copyright lawyer.
How can Prosper Law help?
Prosper Law is Australia's online law firm with experience providing copyright legal advice regarding intellectual property to designers, writers, photographers and other creators.
If you want to protect your copyright or need help to maximise the value of your copyright, you should contact our copyright lawyer today for a fixed fee legal quote.
Farrah Motley | Legal Principal
PROSPER LAW - A Commercial Law Firm for Businesses
M: 0422 721 121
A: Suite No. 99, Level 54, 111 Eagle Street, Brisbane, Queensland Australia 4000