What is Copyright?
In essence, copyright can be defined as an exclusive right to deal with “original works” or “subject matter other than works” in particular ways. For example, if I own the copyright in a graphic design I have the right to reproduce the work, licence this work out to third parties to use or assign the ownership of the copyright in the work to another person for a sum of money. People who do not own the copyright or are not licenced to use the copyright do not have these rights to deal with this work in these ways.
Copyright usually arises when you create or author an expression of something. For example, a painting of a tree would be an artistic expression of a tangible object (which may or may not exist). If this work is original and complies with the sections of the Copyright Act, copyright will subsist.
Where did Copyright Come From?
This right to copyright has been created by the Copyright Act 1968 (Cth) (the “Copyright Act”) alone, as opposed to emerging out of judicial decisions or principles of equity (as some other legal rights do). It is therefore often termed a ‘creature of statute’.
Copyright is the Expression of Ideas
Fundamental to the idea of copyright is the concept that copyright protects the expression of ideas as opposed to the idea itself. Therefore irrespective of whether the work is overly artistic or more commercial in nature, as long as the work is an original expression of an idea, it will be covered by copyright. The one exception to this is works of artistic craftsmanship, which require the work to be artistic in nature as opposed to being constrained by functional considerations. This category of “works of artistic craftsmanship” are discussed below.
What Exclusive Rights Do I get with Copyright?
Copyright applies to two categories of works: “original works” and “subject matter other than works”. These categories are then broken down into subcategories of original works or subject matter.
Original works in the form of literary, dramatic or literary works gives rise to the exclusive right to (generally):
- reproduce the work in a material form;
- publish the work;
- perform the work in public;
- communicate the work to the public;
- make an adaptation of the work.
Copyright in subject matter other than works gives rise to exclusive rights depending on the type of subject matter. For example, copyright in sound recordings gives rise to the exclusive right to:
- make a copy of the sound recording;
- cause the recording to be heard in public;
- communicate the recording to the public;
- enter into a commercial rental arrangement in respect of the recording.
What are Original Works?
Part III of the Copyright Act covers the protection of copyright in “Works”. Works here includes reference to literary, dramatic, musical and artistic works. These works can include, for example:
- Musical scores; and
- Graphic art.
These works are distinguishable from subject matter other than work in that these works are what could be termed primary sources of expression. Subject matters other than work are often secondary sources in that they incorporate original works to create a new form of work, such as a film which incorporates a screenplay, music, costume design etc into one final product.
In order for Copyright to subsist in original Works the Work needs to be:
- An expression;
- Reduced to material form;
- Must be connected to Australia by a connecting factor; and
Copyright in Unpublished Original Work vs Published Original Work – At what time is the copyright created?
Under the Copyright Act, copyright exists in unpublished work where the author is a “qualified person” (meaning an Australian Citizen) at the time the work was made. Alternatively copyright will exist where a person is a qualified person for a substantial part of making the work.
In published work, on the other hand, copyright will exist at the time the work is published. This is provided that the first publication took place in Australia, and that the author is an Australian citizen.
As noted above in addition to these requirements there needs to also be originality in the work and the work needs to be reduced to material form.
What is Copyright in Subject Matter other than Works?
Part IV of the Copyright Act covers the protection of copyright in subject matter other than works. These works are usually ancillary to or incorporate original works and can include pre-recorded television shows, recordings, radio and published editions of work. An example of the distinction between original works and subject matter other than works is the difference between a screenplay and a film. Here, the screenplay is an original work (dramatic work), the copyright of which belongs to the screenwriter; the film itself is subject matter other than works, the copyright of which belongs to the producer. This type of subject matter includes:
- Sound recordings;
- cinematograph films;
- television broadcasts and sound broadcasts;
- published works.
When does Copyright arise in Literary Works?
Aside from literary pieces such as manuscripts, section 10(1) of the Copyright Act also specifies that literary work includes:
- a table, or compilation, expressed in words, figures or symbols; and
- a computer program or compilation of computer programs.
The key is that the facts or ideas are “expressed”. Therefore, it is irrelevant how mundane that expression is, with newspapers birth death columns even being able to be considered as literary works. The key is that there is sufficient originality in expression.
When does Copyright arise in Dramatic Works?
The difference between dramatic and literary works is that dramatic works are supposed to be represented or performed rather than narrated.
Section 10(1) defines dramatic works as to include:
- a choreographic show or other dumb show (mime); and
- a scenario or script for a cinematograph film.
Section 10(1)(b) does not include the film itself.
When does Copyright arise in Musical Works?
Musical work is not defined in the Copyright Act, however has been defined by academics to include “the organisation or combination of sounds as to pitch, duration, intensity and rhythm”. The former Copyright Act 1905 (Cth) defined musical works as “any combination of melody and harmony or either of them, printed, reduced to writing or otherwise graphically produced or reproduced”. The lack of definition serves to make what fits into this category broader.
When does Copyright arise in Artistic Works?
Under section 10(1) of the Copyright Act Artistic Work means:
- a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not;
- a building or a model of a building, whether the building or model is of artistic quality or not; or
- a work of artistic craftsmanship whether or not mentioned in paragraph (a) or (b);
While 10(1)(a) and (b) are self-explanatory, whether or not a work is of artistic craftsmanship under section 10(1)(c) depends on whether it is constrained by functional considerations. For example, in a High Court of Australia case it was held that a sports yacht crafted by the plaintiff was not a work of artistic craftsmanship, and therefore it was not illegal to copy it, because the yacht was crafted in a way that it was constrained by functional considerations. That is, the yacht was crafted for speed and therefore was not allowed to be longer than 9 metres, and many aspects of the yacht’s design catered to this.
When does Copyright arise in Adaptations?
Under 10(1) of the Copyright Act Adaptations are defined as:
- a literary work in a non-dramatic form adapted into a dramatic work (for example a book manuscript converted into a screenplay);
- a literary work in a dramatic form adapted into a non – dramatic form;
(ba) a version of a computer game;
- a translation of a literary work, or a version of the work in which a story or action is conveyed solely or principally by means of pictures; and
- an arrangement or transcription of a musical work.
Adaptations therefore usually include some form of conversion.
How long does copyright last for?
Copyright generally exists for 70 years, but depends wholly on what type of category the work fits into.
The duration of copyright is:
Literary, Dramatic, Musical or Artistic Work
- If the author is deceased and has created a literary, dramatic, musical or artistic work – 70 years after the end of the calendar year in which the author of the work died;
- If the author is alive and has created literary, dramatic or musical work and the work has not been published, performed in public, broadcast or offered or exposed for sale to the public – 70 years after the calendar year in which the work (or an adaptation) is first published, performed in public, broadcast or offered or exposed for sale to the public;
- 50 years after the expiration of the calendar year in which the broadcast was made.
Published Editions of Works
- 25 years after the expiration of the calendar year in which the edition was first published.
For more information on Copyright please contact our Intellectual Property Law team on (07) 3252 0011.
Written by Eduardo Cruz (Senior Associate)
 S 8.
 Copyright Act 1968 (Cth) s 32.
 Ibid s 85 – 88.
 University of London Press Ltd v University Tutorial Press Ltd; John Fairfax Pty Ltd v Australia Consolidated Press Ltd (1960) SR (NSW) 413
 Burge v Swarbrick  HCA 17.