Written by Anamaria Correal, Trademark Attorney
In today’s rapidly evolving world, copyright law plays an essential role in the digital era. Copyright protects a bundle of exclusive legal rights. It protects the original way an idea or information are expressed but not the idea itself.
In Australia, copyright protection is granted automatically from the moment an original work is created. With this being said, while the completion of formalities such as publication, registration or the payment of fees are not required, it is highly recommendable that authors and creators do so so as to protect their work against infringement.
What is copyright infringement?
As a general matter, copyright infringement occurs when copyright material is used in one of the exclusive ways controlled by the copyright owner without the appropriate licence. This article will explain a few acts that could potentially constitute infringement, as well as who owns the copyright and how long it lasts.
i. Reproduction of a substantial part
Copyright infringement occurs when a person or entity not being the owner of the copyright or without any relevant “fair dealing” defence or without a licence uses a “substantial part” of someone else’s work or subject-matter. While a substantial part is not defined in the Copyright At 1968 (Cth), courts have interpreted it as an ‘important, recognisable, essential part of the whole’.
ii. Authorisation of copyright infringement
Copyright infringement also occurs by authorising an infringement. In other words when an act is authorised to be done by a person or entity who is not the copyright owner or does not have an appropriate licence. For instance, instructing someone to infringe copyright material, permitting someone to use equipment to infringe copyright,[1] or providing links to infringing material on the web.
In determining authorisation liability, Courts will consider different factors such as the extent (if any) of the person´s power to prevent the doing of the act, the nature of any relationship existing between the infringer and the person or entity who authorises, and whether reasonable steps were taken to prevent the infringement.
iii. Importation of infringing material
Copyright infringement can occur when copyright material is imported into Australia for sale or hire without the appropriate permission of the copyright owner, and the importer knew or ought reasonably to have known that the making of the material in Australia would have been an infringement.[2]
Who owns the copyright?
As a general rule, the author is the first owner of the copyright in an original work, unless any assignment arrangement by the parties or subject to qualifications in the legislation.[3] While an author is the person who creates the work,[4] the owner of the copyright could be the person or the company which owns the rights in the work or other subject-matter.
Also, two or more parties can own copyright jointly if the work has been produced by the collaboration of the parties, and the contribution of each author is not separate from the contribution of the other author.[5] In Australia, a significant and original contribution is required.[6] However, ownership rules in relation to economic rights may be varied by agreement.
How long does copyright last?
Copyright lasts for different periods. This will differ depending on several factors, including the type of copyright material, when it was created, when it was published, and when the creator died.
- Generally, works are protected for the life of the creator plus 70 years.
- Sound recordings and films, 70 years from publication.
- Television and radio broadcasts, 50 years after being broadcast.
Material falls into the public domain when copyright expires, and may subsequently be freely used.
Conclusion
It is important to take into account that the information in this post is general in nature, while the law applies differently to a particular set of circumstances. This article does not constitute legal advice – if you are concerned that your copyright has been infringed or if you believe that you may have infringed someone else’s copyright it is important to seek legal advice.
For example, HGG can assist you in determining what solution is appropriate and whether a letter of demand is recommendable as this may constitute “groundless threats”. If you think you may need assistance with intellectual property law, contact our legal team to discuss your specific situation.
Harris Gomez Group opened its doors in 1997 as an Australian legal and commercial firm. In 2001, we expanded our practice to the international market with the establishment of our office in Santiago, Chile. This international expansion meant we could provide an essential bridge for Australian companies with interests and activities in Latin America, and in so doing, became the first Australian law firm with an office in Latin America.
We provide innovative technology and resources businesses with legal and commercial expertise to realise their global potential. Our goal is to see innovative businesses establish and thrive in the global market. We are proud members of Austmine.
To better understand how we can support your management team in the Region, please contact contact@hgomezgroup.com
[1] University of NSW v Moorhouse [1975].
[2] Copyright Act 1968, Section 37, 38, 102, 103.
[3] The Copyright Act 1968 (Cth), Section 35
[4] Ibid.
[5] Ibid. Section 10
[6] Hadley v Kemp [1999] E.M.L.R. 589 at 643
