Guide to Copyright


No formalities - including no registration



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No formalities - including no registration


The Copyright Act does not require the completion of formalities (such as publication, registration or the payment of fees) in order to obtain protection in Australia, or any other country which is also a party to an international copyright treaty. This is unlike the position with patents, trade marks, designs and plant breeder's rights where registration is a precondition to protection. Copyright protection is granted automatically from the time an original work is created.

Copyright notice


Although copyright protection in Australia is not dependent upon formal notice, it is best practice and advisable for copyright owners to place a copyright notice in a prominent place on their work. There is no set form of words for a copyright notice, but such a notice may state:

This work is copyright. Apart from any use permitted under the Copyright Act 1968, no part may be reproduced by any process, nor may any other exclusive right be exercised, without the permission of [name and address of copyright owner and the year in which the work was made].

It is sensible for copyright owners to regard their copyright as an item of property and to deal with it in a business-like way. Copyright owners should always keep dated copies of their works (eg manuscripts and tapes) and copies of any letters submitting their work to others. No document dealing with copyright should be signed unless its contents are fully understood.



Copyright owners of material in electronic form may also wish to attach electronic rights management information to their work or other subject-matter. The removal or alteration of this material is prohibited by the Copyright Act in certain circumstances. Copyright owners of material in electronic form can also protect their material by technologies such as password protection or software locks. The Copyright Act also prohibits the circumvention of locks which control access and dealings in devices and services used to circumvent locks.

How do you prove ownership of copyright if there is no system of registration?


In most cases the issue of ownership of copyright will not be in dispute. However, where there is a dispute which comes before a court, the court will take into account the evidence of the person who created the work and other persons who were involved in or who knew about the creation of the work. Statements of the ownership of copyright and the date of publication or manufacture appearing on the labelling or packaging of copies of copyright materials will be treated in court as accurate evidence of what they say (through evidential presumptions), unless the person disputing those issues can point to something raising a question about their accuracy. Documents recording the passing of copyright from the original owner to the person claiming present ownership will be similarly treated as evidence unless there is something to question the accuracy of that.

What is the difference between an author and a copyright owner?


An author is the person who creates a copyright work. A copyright owner is the person or company which owns the rights in a work or other subject-matter. In many instances the author of a work will be the owner of copyright; however, this need not be the case. An important exception is where copyright works are made by an employee during the course of their employment, in which case copyright vests with the employer. The rules relating to ownership of copyright may also be varied under an agreement; for example, an author may agree to assign his or her rights in a work to someone else.

Who is a copyright owner?

Works


Usually the creator of a literary, dramatic, musical or artistic work is the first owner of the copyright in it, but there are several exceptions. One important exception is that copyrights in works made during the course of employment are owned by the employer and not the employee. All copyright ownership rules (except those that relate to moral rights) may be varied by agreement.

Certain commissioned works


In the case of certain artistic works, including engravings and painted or drawn portraits that are made under commission, the person commissioning the work is the first copyright owner, subject to any agreement to the contrary. However, if the person commissioning the work informs the artist of the purpose for which the work is required then the artist can legally restrain the use of the work for any other purpose.

In the case of commissioned photographs, the photographer is the copyright owner, subject to any agreement to the contrary. Where the commissioned photographs are of a private or domestic nature, the commissioning party owns the copyright, subject to any agreement to the contrary.


Sound recordings and films


The owner of any copyright in a sound recording or a film is normally the person/s who made it. The 'maker' of a sound recording is the owner of the master recording, but where the recording is of a live performance, the performers are also ‘makers’. The 'maker' of a film is the person who undertook the arrangements necessary for the making of the film. However, for commissioned sound recordings and films, the default position is that the copyright is owned by the commissioning party. The rules for first ownership of copyright in sound recordings and films can, as in the case of works, be varied by contract. For instance, a recording contract between a performing artist and a record company may include assignment of some or all of the artist’s share of copyright in the recordings made under the contract to the company. In the case of sound recordings of performances made before 1 January 2005, special rules apply regarding the performer’s rights and legal advice should be obtained.

Other ownership rules


Special provisions in the Copyright Act provide for the ownership of copyright in radio and television broadcasts, publishers' copyright in editions of works (ie the typesetting and layout), material published by international organisations and material made before the Copyright Act came into operation.


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