Copyright Lawyers Melbourne
Copyright is an important instrument for the protection of intellectual property. It ensures that someone who has created something of value is able to protect that value by controlling the right to copy, use, perform, license, or modify their creation. This is the case as long as that creation is original, and expressed in a physical form. Copyright law differs from other intellectual property instruments such as patents and trademark law.
Copyright protects some products that have been developed through the application of creative or original thinking. Such creations are collectively referred to as intellectual property. The protection of intellectual property is critical in ensuring that the interests of creators are protected. It also allows creators to commercialise their work in a way that suits their goals or aspirations, without having to deal with competitors who have blatantly copied their work.
Intellectual property rights are an important part of commercial law, and various instruments exist under common law to protect intellectual property. Copyright is one such instrument.
What does copyright protect?
Australian copyright law is laid out in the Commonwealth Copyright Act 1968. Under the Act, certain forms of creative material may we awarded the protection of copyright. Generally, examples of content that may be protected by copyright include content that is:
- Textual – Referring to a form of content that is interpreted through writing, with the meaning and value being placed on the ideas expressed through that writing;
- Artistic – Especially visual art, such as film or other media;
- Musical – Content that is composed of audible sound arranged in such as a way that conveys meaning or value.
Copyright generally applies to the original author or creator, that is, the person who first turned an idea into a physical form of creative material. Copyright is not awarded to the person who came up with an idea; it is awarded to the person who created a physical representation of that idea.
Copyright law and trademark law
Copyright laws do not apply to brand materials, such as names or logos. Commercial materials such as these often fall under the protection of other intellectual property instruments, such as trademark law.
Entitlements under copyright
Creators are entitled certain exclusive rights to their work once they have established copyright. Such rights are laid out under section 31 of the Commonwealth Copyright Act 1968. For example, content creators have the exclusive right to:
- Physically reproduce their work;
- Publish their work;
- Publicly perform their work;
- Publicly communicate their work;
- Make any adaptations of their work.
These rights may differ slightly depending on the type of copyrighted material, for example, an artist has slightly different rights than a writer.
Negative copyright rights
A negative copyright right may be defined as a protection afforded to an author, which prevents the labour of that author being appropriated by another entity. Specifically, it is not the idea created by the author that is protected, but the expression of that idea (the text written by the author).
Moral rights are enforced through the Commonwealth Copyright Amendment (Moral Rights) Act 2000. Under the Act, moral rights are awarded to authors of film, literary, dramatic or artistic works. Moral rights generally relate to the status of authorship, and protecting that status for the legitimate author. For example, under the Act, such creators have the moral right to have things they have authored attributed to them. They also have the right to ensure that their works are not falsely attributed to others.
Copyright protection in Australia is automatic. There is no application or approval process. As long as a creator is able to demonstrate that they are indeed the first person to have created that work, they are protected by copyright. The following conditions must be met for an author to be eligible for copyright protection in Australia:
- The person must be an Australian citizen, protected person, person who resides in Australia for work purposes, or body corporate incorporated by state or commonwealth law;
- The work must have been first published or created in Australia.
Establishing copyright infringement
For copyright infringement to have occurred there must have been substantial reproduction/copying of the original work. This may be proven by demonstrating that the offending reproduction is sufficiently similar to the original work to constitute an infringement of the creator’s rights.
Under some circumstances, copyrighted material may be used by other parties for specific and fair purposes. Such purposes include satire, research, review, news reporting, etc. It can be difficult to prove whether or not such use may constitute fair dealing/lawful use or not. It may be best to hire a lawyer to assist you if your copyrighted material is being used under a claim of fair dealing to ensure that your intellectual property interests are protected. Factors that contribute to whether unapproved use constitutes fair dealing or not include:
- Whether or not the copyright owner was acknowledged in the use of the content;
- The proportion of copyrighted material used in the content;
- Whether or not the copyrighted material was used to make a profit without license to do so.
Other circumstance-specific factors influence what constitutes fair dealing, which is why legal advice may be required when deciding whether or not action is required.
The following circumstances are examples of situations where reproduction of a text does not constitute copyright infringement:
- Reproduction for use in judicial proceedings;
- Reproducing content in a physical form for personal or private use;
- Reproducing content for the purpose of formal and accredited education;
- Reproduction for the purpose criticism, study, review, or parody;
- A temporary reproduction used during communication that demonstrates a technical process;
- Reproduction of labels designed for a chemical product; and
- When reproduction of the content can be proven to be in the public interest.