Intellectual property

Copyright

Most people know that copyright protects written content, but are less clear about the precise requirements of copyright protection, and just what amounts to copyright infringement. The basics are:

In Australia, there is no system for registration of copyright. Instead copyright protection is automatic for something that is original and has been recorded in a “material form”. For example written text, computer programs, databases, paintings, films and sound recordings may be protected. However, copyright does not protect an underlying idea. For example, the idea or plot for a television programme is not protected by copyright unless it has been written down, filmed or otherwise recorded.

Telephone directories, business directories, catalogues, product lists, event guides, programs and timetables may be protected by copyright, even if they are a compilation of information derived from another source, provided sufficient evidence has gone into the gathering, selection or arrangement of the information.

For names and slogans, however, trademark registration is better than copyright protection.

Mass-produced items are often better protected by registered designs (protecting the appearance and shape of articles) or patents (protecting products that are functional, new and inventive).

The copyright notice — usually consisting of the copyright symbol ©, the owner’s name and year of publication — is not needed to ensure copyright protection in Australia. However, using this notice makes people aware you are claiming copyright and may discourage misuse.

In general, the person who creates a copyright work owns the copyright. However, if an employee creates the work during the course of their employment, their employer owns copyright. A third party contractor usually owns and retains copyright in work they produce, unless a written contract reassigns it. Regardless of any reassignment, the person who creates a copyright work has certain moral rights. These include the right to be attributed for their work, the right not to have their work falsely attributed and the right not to have their work treated in a derogatory way. Moral rights cannot be assigned, but the creator may provide consent for the work to be used in specific ways.

When it comes to copyright infringement, the legal test is whether someone has reproduced, published or adapted the whole or a substantial part of a copyright work without the permission of the copyright owner. The concept of “substantial” is qualitative not quantitative. If a person takes an important or distinctive part of the original work, even if that part is a small proportion of the original, it may still constitute copyright infringement. There are certain exceptions to copyright infringement, but these are limited and difficult to rely on where the copyright work is used for commercial purposes.

For directories, databases or other compilations of information, where significant skill and labour has gone into the collation of information, it may be copyright infringement to reproduce that information, even if the information has been rearranged. Where the skill and labour relates to the presentation and arrangement of the information, reproducing information may not amount to infringement but reproducing the way the information is arranged might. In both cases where the person independently assembles and presents information, copyright infringement is unlikely.

Navigating the complexities of copyright law and ensuring the protection of your creative works often requires the expertise of an IP lawyer. These professionals can provide tailored advice and legal support to help you assert your rights and safeguard your intellectual property effectively. For guidance on copyright matters and related legal issues, don’t hesitate to consult Rosendorff Lawyers.