In Australia copyright is a statutory grant of rights under the Copyright Act 1968 (Cth) which provides protection for two categories of material, Part 111 materials, known loosely as ‘works’ and Part 1V materials, known as ‘subject matter other than works’ (otherwise referred to as ‘neighbouring rights’).
If materials fall within the scope of these categories, they will be awarded copyright. A ‘work’ is defined in s10(1) of the Act as meaning a ‘literary, dramatic, musical or artistic work’. Part 1V works are not defined but include sound recordings, films, sound and television broadcasts and published editions.
What are the criteria for copyright protection?
There is no formal registration process in Australia for attaining copyright protection, with the key elements to establishing the existence of ownership varying according to the residency of the creator, whether the work in question has been published, where such publication occurred and when a particular work came into existence.
There are certain ‘connecting factors’, also referred to as ‘points of attachment‘, which vary according to the material in question, that must be in existence for copyright protection to arise. These connecting factors operate to establish either a territorial or personal connection to Australia.
However, where these connecting factors (encompassed in S32, S84, S89, S90, or S91 are not present, material may still be granted protection under the Act by virtue of the operation of international copyright recognition provisions found in ss128-188 of the Act.
These International Regulations extend the scope of copyright protection to material first published in a country which has become a party to the Berne Convention for the Protection of Literary and Artistic Works, the Universal Copyright Convention and the World Trade Organisation. These Conventions recognise the principle of national treatment or reciprocity, so that authors of countries signatory to them may have reciprocal rights bestowed upon them in their works in countries which have also implemented these and other Treaties. This is the case even where the formalities for protection in the relevant country have not been complied with. Therefore you should check which countries are members of the Berne Convention.
Whilst this may entitle you to copyright protection and the right to enforce your copyright, for practical purposes you might still need to overcome practical hurdles to prove that you own copyright. Australia does not have a formal registration process, and it is recommended that you not only date various iterations of your work, marking it with a copyright symbol, but also engage the services of a notary or escrow service to give you protection in the event of having to prove ownership of a work.
It is always recommended that a copyright symbol be affixed to a work, including the name of the copyright owner, and the year of first publication. Not only does it draw attention to the fact that copyright subsists in the material, but also assists in identifying the owner of the copyright. It may also provide valuable information concerning the author’s requirements in relation to the exercise of any moral rights they may have in the work in question.
It is a fundamental axiom of copyright law that protection is granted for the form in which ideas are expressed rather than for ideas, concepts or information. Copyright isn’t intended to protect functionality which is the province of patent law. (See Autodesk v Dyason)
The idea/expression dichotomy becomes problematic where a particular idea can only be expressed intelligibly in one or a limited number of ways, which is what is meant when the idea and expression of the idea are said to ‘merge’. To give a simple example there is only way to draw a map of Australia in any meaningful way, at least in terms of capturing it’s correct geographical contours. Historically, the protection of maps has posed serious problems in copyright theory and practice. A person who draws a map might add creative features of style, colour and other embellishments, but the boundaries of the maps can’t be protected by copyright. A map is not unlike a factual compilation, a collection of data usefully presented.
Copyright protection was granted to Telstra for a factual compilation, as an original literary work under the Act, to Telstra in their telephone book (an alphabetised listing of subscribers’ names and phone numbers in the case of Telstra Corporation Limited v Desktop Marketing Systems Pty Ltd. However in recent case law Australian courts have adopted a US style approach to protecting such compilations or databases. In IceTV Pty Ltd v Network Nine Pty Ltd  HCA 14, the Court took a different approach to the reproduction by IceTV of Channel Nine’s weekly schedule containing the time and title information for a 7-day broadcast week. Applying the High Court’s decision in IceTV, the Federal Court recently held that no copyright subsists in the white and yellow pages telephone directories ( See Telstra Corporation Limited v Phone Directories Company Pty Ltd  FCA 44).
This opens the door to the copying by third parties of other databases such as football fixtures and real estate listings. The Court held that for protection to arise there has to be some “independent intellectual effort” or “substantial effort of a literary nature”. Further the Court found that the authors of substantial parts of the works in question couldn’t be identified and the works were largely computer generated.
In the Cotton on Clothing case, however the Full Court of the Federal Court of Australia acknowledged how an idea and it’s expression can merge, in the sense of becoming inextricably connected. Copyright protection was afforded to computer generated artistic designs of swing tags and T-shirts having the look and feel of a US college style V necked T-Shirt. The fact that the defendants had changed the words and numbers did not prevent them from being found to have taken a substantial part of Elwood Clothing’s designs and infringed copyright. The original Court had earlier found that the design of a V shaped collegiate style T-shirt with numbers was a concept or idea, which copyright didn’t protect.
With the exception of sound recordings and broadcasts, which are ephemeral in nature, copyright does not exist in works which have not been reduced to a tangible medium. Works which have not been fixed in a tangible form of expression will not be accorded protection, for instance choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded. However there may be performance rights which exist in these types of works.
Substantiality – titles, slogans, short phrases, character names
Typically, single words, short phrases, slogans and the like will not be afforded protection via copyright law even if newly coined or invented by the author, although they may be the subject of trademark protection. Exxon Corporation v Exxon Insurance Consultants Ltd (1981) 3 All ER 241 is a leading English authority on the existence of copyright as an ‘original literary work’ in a name alone.
The case stands as authority for the proposition that there is no literary copyright in a name. Exxon had argued they enjoyed copyright in the word Exxon because of the considerable time and energy invested by the company who had employed linguists to invent the word, contending that the actual size of the literary work doesn’t preclude it from qualifying for coypright protection.
The Court concluded that the work was merely a word, though invented and original, it had no meaning and suggested nothing in itself. The Court compared it with the word ‘Jabberwocky’ used for Lewis Carroll’s famous poem. Previous US law has recognised limited rights in invented names or fictional characters.
Originality and authorship
A requirement for copyright protection is that a work be ‘original’ under S32(1) & (2). Originality is a legal term not a term of art, and is closely related to the concept of authorship. The person responsible for embodying a work in material form, reducing it to a tangible form of expression, is considered the author of the work even if the ideas or information underlying the work are provided by a third party. See Donaghue v Allied Newspapers (1938) Ch 106 (a retired racing identity recounted stories to a journalist about his life and career, which were then used by the journalist to write articles. The Court held the copyright in the articles belonged to the Journalist)
In Cummins v Bond it was alleged that where a ghost from the spirit world dictates a work from the spirit world through a medium during a seance, the medium owns the copyright, not the ghost, nor the person who claimed copyright in the utterings of the medium having mechanically jotted down their utterances. The medium was characterised by the Court as similar to a stenographist or typist.
Shorthand writers, involved merely in the mechanical transcription of a work verbatim, will not enjoy copyright on the grounds that they are a mere scribe or amaneunsis. To avoid any disputes it is wise to reduce a proposed work to a material form, in the form of notes or an audio recording to avoid any opportunistic claims to copyright by a person merely taking dictation. A foreign translation of a work may enjoy an independent copyright, depending on the originality of expression invested by the translator. Whether the work is transformative enough to avoid being regarded as a derivative work which infringes the original literary work upon which it is based is a separate question.
Similar issues have arisen in cases involving claims to joint authorship (or co-authorship) and therefore co-ownership of copyright (see below – joint authorship) by persons who have contributed ideas or embellishments for the writing of plays and film scripts. In Green v Broadcasting Corporation of New Zealand, the question arose of how to protect ideas for TV shows, in particular popular reality TV formats. In this case the Plaintiff was unable to establish copyright in their work as a ‘dramatic work‘. The case is a reminder that an author will not attain copyright protection merely because they think up the idea of a plot for a play, makes suggestions for scenic effects or passes on their ideas to a ghostwriter.
Scope of copyright
A relatively low threshold of originality is required for material to attract copyright protection. A potentially broad array of materials have been granted copyright protection within the category of ‘literary works‘, such as instructional manuals, medical records, customer lists, coupons, train timetables, maps, factual databases, recipe instructions and source and object code in computer programs.
The categories of the various Part 111 works are extensively defined and provide for a broad range of creative works to be protected. For instance artistic works includes ‘paintings, sculptures, drawings, engravings, photographs, buildings and models of buildings’. The word ‘artistic ‘ can encompass any form of pictorial display irrespective of aesthetic appeal. It has been held that maps, etchings, building plans, prints, models, casts, etchings and industrial photographs may fall within the scope of this category.
There have been cases where litigants have tried to challenge more traditional notions of concepts, such as in Merchandising Corporation of America v Harpbond in which pop star Adam Ant argued unsuccessfully that his face, with make-up applied, constituted a ‘painting’. This conclusion is of relevance for tattoo and make up artists. The Court held that this didn’t fit the dictionary definition of a painting, and a surface is one upon which the paint marks are impermanent.
A New Zealand Court had conferred protection upon a frisbee as a ‘sculpture’ in Lincoln Industries Ltd v Wham-O Manufacturing Co, a conclusion later rejected by both the High Court of Australia and the New Zealand Court of Appeal in Greenfield Products Pty Ltd v Rover-Scott Products Ltd (1990). This was a case where the plaintiff tried to argue, albeit unsuccessfully, that ‘lawn mower drive shafts‘ should be considered ‘scultpures’ and ‘engravings‘ by contemporary standards. These cases are in line with some overseas cases where there have been attempts to expand old definitions to bring them up to date with present day industrial processes.
The category of artistic works includes ‘works of artistic craftsmanship‘, the meaning of which has been considered by the High Court of Australia in Burge v Swarbrick in which a former Naval Architect argued he had copyright in the mouldings and deck as works of artistic craftsmanship, and in the plug as a sculpture in respect of the design of his high performance racing yacht. It was put to the Court the fact that the Plaintiff had produced his work from a CAD program shouldn’t make something less than a work of artistic craftsmanship. The High Court conceded that there whilst there were visual aesthetic considerations in the making of the yacht, they were subordinated to matters of functionality in the design of the yacht.
What constitutes a work of artistic craftsmanship appears to be determined in part by functional considerations. Whether or not something is a work of artistic craftsmanship is significant in interaction of design and copyright law. Copyright protection will be lost where a work has been industrially applied under the Copyright Regulations, namely in respect of 50 articles. The number of goods will depend on the type of good manufactured, and in respect of yachts, the construction of 32 yachts is deemed to be industrial application. However an important exemption from the design/copyright overlap provisions exists in S77 (1)(a) of the Copyright Act, which states that S77 doesn’t operate where the artistic work which corresponds to the design is a work of artistic craftsmanship.
Rights of the copyright owner
Copyright grants the owner a bundle of exclusive rights to do certain acts in rleation to ‘works’ or adaptations of works or other subject matter. (See s13, s31, ss85-88). Whilst different rights attach to different categories of works, copyright is a powerful right which is granted to the copyright owner to control the commercial exploitation of their materials for varying durations. The rights over copyright in laboratory notebooks, architectual or design drawings and other manuals can become of significant importance in an evidentiary sense in establishing ultimate ownership of patent and design rights.
The rights of the copyright owner include the right to reproduce, make an adaptation of a work, publish, perform a work in public, communicate a work to the public, re-broadcast, and in respect of computer programs, literary, dramatic and musical works, the right to enter into a commercial rental arrangement in respect of the work. Copyright protection is lost by the owner of a two dimensional artistic work if they apply a three dimensional artistic work industrially under the Design/Copyright overlap provisions.
Moral rights are personal to an author or creator and also attach to performers with the advent of the AUSFTAI Act (Cth) in respect of live and recorded performances and cannot be assigned by the owner. The key rights are attribution (S193, S195ABA), to prevent false attribution 195AC, 195AHA, and the right of integrity, namely to prevent a work being subject to derogatory treatment. S195AI, S195ALA.
Part X1A of the Act contain provisions to protect the rights of theatre performers, dancers and singers in terms of the copying, sale, importation or communication to the public or unauthorised recordings of their live performances.
How long does copyright last?
There is no simple answer to this question which depends on the characteristics of the material and the type of work. Literary, dramatic, musical and artistic works which have been published are protected for a period of 70 years from the end of the calender year of the author’s death. The same term of protection applies to unpublished computer programs. An unpublished literary work, with the exception of a computer program, and dramatic and musical works which havn’t been published, performed or made available to the public will enjoy copyright protection for a period of 70 years from the end of the calender year in which one of these events occurs. Sound and film copyright endures for 70 years from the end of the year in which they are first published whilst broadcasts have protection for 50 years from the end of the calender year in which the broadcast was made. Published edition copyright endures for 25 years from the year of first publication.
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