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Protecting your Intellectual Property – Copyright

What is Copyright?

Copyright is one of the main intellectual property protections in Australia and is the most common and appropriate form of protection available for literary, musical and artistic work. It is automatic and it is free.

 

 

Other intellectual property protections include:

  • Patent: must be applied for in a complex, lengthy and costly process. It is for inventions such as a device, a method, a substance or a process. Once granted, it has a time limit.
  • Trade mark: this will distinguish your business from your competitors. It is a protection for a letter, number, word, phrase, sound, smell, shape, logo, picture and/or mode of packaging that you use to sell your product. And
  • Confidentiality / trade secrets: this is an alternative to patenting your invention which requires you to simply keep it a secret. You use a strict confidentiality regime with employees, business associates, and manufacturers, to keep your process, product or ingredients from the public domain.

 

How it works

You have copyright protection the moment you create your artistic work, subject to it being original, properly documented and complying with relevant law. It is automatic in Australia and there is no requirement to register or apply for copyright protection.

This protection comes from the Copyright Act 1968 and gives you the exclusive right to the work, and to license others in regard to copying, performing or publishing the work in public. Such protection and rights differ for different kinds of literary or musical work.

It is important to note that copyright doesn’t protect you against independent creation of a similar work. Also note that there is no copyright in ideas or information.

Deterring potential infringers

A copyright notice on your artistic work is not necessary to give you copyright protection, however:

  • it can be an effective deterrent to potential infringers of copyrights; and
  • it can help prove your ownership of the copyright.

 

The Attorney General’s office provides the following wording as appropriate for use in copyright notices:

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].

Proving ownership of copyright

In most legal cases, the question of ownership of copyright is not in dispute. However when this occurs, you will need evidence to demonstrate that you created the work. You might ask people who were involved in or who knew about the creation of the work to support you, and you can use drafts and other records to show that the work is yours. It is therefore important that you keep drafts and records of all your work, and that you record dates and details of creation, etc.

Duration of copyright

Depending on the material, copyright for literary, dramatic, musical and artistic works generally lasts 70 years from the year of the author’s death or from the year of first publication after the author’s death.

Copyright for films and sound recordings lasts 70 years from their publication and for broadcasts, 70 years from the year in which they were made.

The internet and social media

Technology means that it is less common for authors to engage with a publisher to print a hard copy book or to publish an article in a controlled fashion. Literary works are posted on the internet all the time and are then “republished” (shared, re-tweeted) across the world.

Australia’s copyright protection still applies to these writings in Australia if they fulfil the basic requirements of copyright (being original). Generally the way in which you post means that you authorise the republication of your works (because you want the world at large to see it) however this does not diminish your copyright protection in Australia. The work should remain yours and not be credited to others. The copyright wording mentioned above will assist in crediting the work to you provided that it remains part of the shared content. You could create additional protection by including terms of use in the wording – for example, granting permission for your work to be shared but only if it is always credited to you.

Some countries have agreements with Australia regarding copyright protection but many others do not. To adequately protect your IP in another country you will need advice from IP professionals – either Australian professionals with international expertise, or engaging an IP professional in other countries.

A recent example – Dallas Buyers Club

Recent media attention to the illegal distribution of the Dallas Buyers Club film shows that the Federal Court of Australia is taking very seriously the rights of copyright owners in films. American companies alleging ownership of the copyright in this film have commenced proceedings for copyright infringement and may have a right to sue persons who used BitTorrent to illegally obtain the film. The Federal Court has ordered that six Internet Service Providers disclose the identity of over 4000 account holders where the movie has been downloaded to the account holder’s IP address without authorisation. The information will not necessarily identify the individuals who have illegally downloaded the film, but the American copyright holders are arguing at this stage that the accountholders may be able to help them identify the actual infringers.

Definitely a case to watch with interest.

Disclaimer: Please note that this article does not constitute legal advice and you cannot rely on this information as legal advice. This article is for the purposes of information only. If you wish to acquire legal advice, you must consult with a lawyer.

 

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