Copyright in Australia
Disclaimer: This is not legal advice. It is my attempt to explain copyright in layman’s terms. For a full legal definition, please visit your state or federal government website, eg. the Australian Copyright Council. For legal advice on your own particular circumstances, please consult a lawyer. Any questions directed to me will be answered to the best of my knowledge, but should not be taken as legal advice.
Most people have heard of copyright, but some have little respect for it and/or a poor understanding of what it actually means, especially in a business context. Copyright is a law of protection that applies to intellectual property (IP). IP is anything unique that has been created by somebody—an intellectual work that becomes the creator’s property the moment it is created.
What is IP in simple terms?
Intellectual Property incorporates patents, trademarks, industrial design rights, trade secrets and copyrights eg. on music, text and creative works like paintings, photographs, digital art, computer-generated imagery, fiction, poetry and sculptures. By extension, copyright also applies to conglomerative works like books, magazines, newsletters, movies, TV shows, computer games, software, multimedia CD-Roms, PowerPoint shows and websites.
A conglomerative work is intellectual property in its own right and is usually owned by the producer, however it is also made up of works that have been licensed, used with permission or used under the assumption of fair dealing. These embedded works often include attribution (such as ‘Photo by Amanda Greenslade’). Attribution is a legal requirement whether works have been used with permission or not. This is because in addition to copyright ownership of their IP, authors also have moral rights, which include the right to be credited as the creator of the IP.
Sometimes, IP will be released for certain uses or will enter the public domain (eg. government works or creative works 70 years after the death of the creator). Pay attention to the origins of a work of IP you want to use and any licenses or crediting requirements that are attached to it.
What IP Isn’t (nb. this is not a definitive list)
- An idea
- Something copied from somewhere else is copyrighted to somebody else, not to you. Even if you don’t need their permission to copy it and use it elsewhere, you will usually need to attribute or credit them (moral rights).
- Something short and generic, like a title or a common catch-phrase
- Something alive
Protecting your own IP
Your original works are protected by copyright the moment you create them. Contrary to popular myth you do not need to register your sculpture, writing or other creative work anywhere for it to be copyrighted. You do not need to mail it to yourself. In the event of discovering someone has stolen your work and is passing it off as your own, you should firstly contact them to try to resolve the situation between you. As a last option, you could engage the services of a copyright lawyer who can help you determine (A) if the losses suffered are extensive enough to warrant the expense of going to court and (B) what proof you will need to show that you were the original creator of the work.
Writers should be careful about who they release their work to, especially in an easily accessible form like a Word document. Having said that, the draft of a novel or other written work is generally not worth very much. Publishers have slush piles full of manuscripts that will never be published and the internet abounds with self-publishing stories that aren't worth a dime. It isn't until somebody produces and markets a creative work that it starts to become valuable and even then there are no guarantees. If you are an unknown writer, then even after publication your work may not draw in a lot of sales, so it is hard to imagine why anyone would bother stealing it. The hard part is in selling a work, not in writing it.
When using the Intellectual Property of others
It is perfectly fine to quote somebody else's work - in fact most writers would welcome it. You simply place the quote inside quote marks and add a reference at the end following one of the many different referencing styles used in publishing and academia. For rules about making copies of others IP, please visit www.copyright.com.au.
Getting permission in writing to use someone else's IP in your own conglomerative work is the simplest and surest way to avoid problems in the future, however sometimes it is too difficult, time-consuming or expensive to track down the owner of a certain work and in some cases, you don't need to.
The risk-weighing method of copyright decision-making
It is always important to adhere to copyright law, respect the intellectual property of others and give credit where credit is due. Having said this, there are certain grey areas that allow reasonable uses of intellectual property without having to pay exorbitant fees, enter into complicated licenses or edit your own work to keep the creator of the IP used in it happy. The world is full of people with different points of view and part of the freedom of speech that we enjoy in Australia is being able to parody, criticise, share news or teach certain things in a different way to the way their original creator intended.
For example, a national science organisation may have a very different point of view on a dinosaur bone compared to a fundamentalist religious organisation. Because of their opposing position, the national science organisation may be reluctant to give permission to the religious organisation to use its photos of the dinosaur bone because it knows the latter will portray it in a different—and to their minds, incorrect—light. It would therefore be very difficult, time-consuming and/or costly for the religious organisation to obtain permission to use the photo.
Fortunately, fair-dealing copyright law would come into play for the religious organisation, meaning that as long as due credit was given, the photo could be used without permission from the copyright owner. Once you have decided to rely on fair-dealing, it’s important to engage in a risk-weighing analysis. Some questions to ask yourself include:
- Is my use commercial (i.e. am I making money as a result of including this IP?)
If yes, your use of the IP is very risky.
- Is my use defamatory?
If yes, then you may be at risk of being sued for defamation and/or loss of income.
- Did I make reasonable attempts to obtain permission to use the IP?
If no, then your use of the IP may be risky.
- Am I criticising, parodying, teaching about or sharing news about the IP?
If yes, then your use of the IP probably carries little or no risk.
- What effect would leaving out the IP have had on my work?
If leaving it out wouldn’t have made much difference, and you only included it to make your own work stand-out, then the use of the IP carries some risk.
- What steps can I take if I receive a complaint from the copyright owner?
If you can easily remove the offending material (eg. from a website) then the risk is probably low. If your work has been produced (eg. as a DVD or a printed publication), then the risk is higher and you may have to publish an embarrassing and costly retraction.
- Have I credited the copyright owner adequately?
As stated earlier, even if you haven’t had permission to use someone else’s IP in your own work, you do still need to credit the copyright owner. Always try to get in contact with that person before doing so, however, as you may find they don't want their name in your publication for their own personal reasons.
Getting permission to photograph people
When do you need people's permission to be in a photo or video for commercial use?
This is not a black and white issue so it is important you research this issue and the relevant laws in Australia before deciding on a policy for your organisation.
Back in May 2007, I had a meeting with a copyright lawyer at one of my previous jobs and asked “Is it OK to have a person’s face in a photo without their permission?” The lawyer replied, “Yes, unless they’re a performer (and have performer’s rights). But releases are often obtained (esp. in video production) to avoid any miscommunications and really to prevent the threat of suing as much as possible. For crowded places, some producers put up signs saying that filming is in progress. Even then permission is still sometimes obtained in writing from all persons appearing on film.”
You might conclude from this that it is safest to get permission from people in writing even if they DON’T HAVE performer’s rights. Ideally, all businesses (including small ones) should put together an info. sheet/policy that can be provided to staff, put on your website and given to any customers or partners who ask about it. Your policy might include things like:
- It's OK for your company to publish photos taken on your premises for marketing purposes online (verbal or written permission from participants is recommended but not required).
- For printed works or advertising in print or video, verbal or written permission should be obtained from participants.
- Photographers working for you must have a signed contract with you to assign copyright to you.
Add it to any sign-in documentation, forms, booking sheets etc. and to your terms of service etc.
Greenslade Creations can assist you with documentation, document management, office organisation and digital asset management (organising your images with copyright and useage information for your staff to search).
