14th August 2020 - Jax Floro

The author/s of a work is the first owner of copyright in that work. The rule originated in the Statute of Anne (Copyright Act 1710 passed by the Parliament of Great Britain) and is reflected today in s35 of the Copyright Act 1968(Cth).

Exceptions to the rule apply in respect of works produced by employee journalists, commissioned photographs, portraits and engravings, and works produced by employees.

The rewarding of authors with copyright can provide a financial incentive for authors to produce work which in turn increases innovation.

Authorship is important

The identity of the author determines a number of qualifying factors for subsistence of copyright. These include:

• how and when the word was reduced to a material form and who did it
• duration of copyright
• the question or originality of the copyright subject matter.

“The exclusive rights comprised in the copyright in an original work subsist by reason of the relevant fixation of the original work in a material form. The proceed without identifying the work in suit and without informing the enquiry by identifying the author and the relevant time of making or first publication, may cause the formulation of the issues presented to the court to go awry”.
IceTV per Gummow, Hayne and Heydon JJ [105]

What is copyright?

Copyright is a form of intellectual property that protects an author’s exclusive right to make full use of and derive benefit from the original expression of his or her ideas. The law that governs copyright in Australia is the Copyright Act of 1968 (Cth).

Copyright is an array of rights that includes the right to reproduce, copy, publish, broadcast, communicate, make an adaptation, and publicly perform the work. The work may come in the form of short stories, blogs, diaries, novels, memoirs, articles, screenplays, theatre scripts, and poetry.

Other people need the permission or the license of the author to use the author’s copyright material.

Copyright is important to the author because it protects the author’s work from being used without his or her permission and remunerates the author for the work.

Setting up a copyright

Authors do not need to register their copyright. In Australia, copyright is freely and automatically vested the moment the idea is written down or recorded. Copyright protection does not cover ideas, techniques, concepts, styles, or information and generally, so are names, slogans, titles, headlines, and single words.

The copyright lasts as long as the author’s lifetime plus another 70 years after his/her death. The author can also license or assign his/her work to be copied, published, performed, or broadcast.

By assigning the copyright in the work, the author is in effect transferring his or her rights to use, perform, adapt the work to somebody else. Therefore, the copyright to the work is now owned by the person to whom the copyright is assigned to.

When an author issues a license over the work, the author gives permission to another to use his/her work while retaining the ownership. Usually, mutually agreed terms of agreement rule the relationship between the author and the person the work is licensed to and one of these might include payment for the use of the work.

Exceptions to the rule

There are instances, however, when the author does not have the right to use his or her work as would a copyright owner. The following exceptions apply to the default first principle of first ownership of a work.

• Commissioned work. If the author is commissioned by another person to write something for a personal or domestic purpose, copyright ownership is then vested in the one who commissioned the work.
• Work made during employment. If the material or work was made during the employment of the author and as part of his or her job, the copyright is owned by the employer.

Moral rights for an author

Whether or not they own copyright, authors have moral rights. Specifically, these rights are:

• The right to be given credit for the work or to be acknowledged as the author by showing the author’s name on the work.
• The right to prevent somebody else’s name to be written as the author of the work done.
• The right to take action whenever the work is distorted or treated in a way that prejudices the reputation of the author.

Takeaway Points:

• Copyright gives the author a bundle of rights over a written work, which includes the right to publish, publicly perform, copy, reproduce, broadcast or make an adaptation of that work.
• Copyright in Australia is automatically vested from the moment an idea is expressed in writing.
• The existence of a copyright lasts as long as the author lives plus another 70 years after the author’s death.
• The author enjoys moral rights along with copyright.
• Copyright to a work can be assigned or licensed.

 

Jaclyn-Mae Floro, BCompSc

Contact W3IP Law on 1300 776 614 or 0451 951 528 for more information about any of our services or get in touch at law@w3iplaw.com.
Disclaimer. The material in this post represents general information only and should not be taken to be legal advice.