Douglas Cheveralls provide advice on legal issues regarding copyright law and are experienced acting for clients in relation to legal disputes regarding copyright.
What is copyright?
Copyright is a kind of intellectual property. The owner of the copyright owns rights in relation to any copies of the original work according to the Copyright Act 1968, which is commonwealth legislation that applies in all states and territories of Australia.
What this means that as soon as the author of an original work (such as a piece of writing, music or computer software) fixes the work in a tangible form (such as a book or a recorded piece music), it cannot be copied without breaching the owner’s rights.
It’s important to note that copyright protects the tangible work, not the idea behind it. By way of example, it protects someone from copying the physical words that make up a poem, not the idea or meaning of the poem.
Who owns the copyright in a work?
In most cases, the owner of the copyright in the work is the author, or creator of the work. So if an artist paints a picture, or writes a song or a speaker writes (or records) a speech, that artist or that speaker owns the copyright in the “work” whether that is a picture, a recording, or words and notation on a page.
However, copyright is intellectual property, and like other property, it can be sold or assigned. Under the Copyright Act, if an employee creates a work as part of their employment, the copyright is owned (with some conditions) by the employer (s35 of the Copyright Act). This can be altered by agreement with the employer, and in all cases, the owner of the copyright can sell or assign the copyright, or leave it to their beneficiaries in a will.
What is copyright infringement?
The owner’s copyright has been infringed when a “substantial part” of the work has been copied without the consent of the owner. The term “substantial part” is not defined in the Copyright Act, but previous cases on copyright infringement have focused on the quality of what is copied rather than the quantity. For example, if a person copies the distinctive parts of a set of house plans this may be enough for a breach of copyright, even if the copy also has significant differences.
Copyright myths and misconceptions
Misconception number one: It doesn’t have the copyright notice on it ©, so I can use it.
Not true. The copyright notice is used to warn people that the owner is asserting copyright, but the copyright exists as a result of the Copyright Act, regardless of any notice.
Misconception number two: If I alter the work by 15% (or some other percentage), copyright no longer applies.
Not true, see above on copyright infringement. For example, there have been a number of famous cases where part of melody or riff from one song has been used in another, and the court has determined that copyright infringement has occurred.
Misconception number three: It’s on the internet, so I can use it.
Not true. Beware of using photos and text from other websites for your own work because the owner of the photo or text has copyright, and you may be in breach by using it without permission
Misconception number four: As long as I credit the author, I can copy the work.
Not true: Plagiarism and copyright are different things. If you copy someone’s work and give them credit for it, you have not plagiarised it but you still can’t use it without their permission. Consider the case of an artist that sells prints of their original paintings, and each of the paintings has their signature clearly painted in the bottom corner. You still can’t sneak into their studio or shop and take a high quality photograph to make your print and avoid having to pay for a print, even though the painting clearly says who painted it.