Written by Alyce Evans and Jennifer Tutty, Principal
When it comes to copyright law, there are a lot of misconceptions about what it is, when it applies, who it applies to and, effectively, how it works.
To help sort the fact from the fiction, we break down the basics of copyright law and explain nine common mistakes people make about copyright.
But first… what exactly is copyright?
What Rights are Protected by Copyright?
The rights granted to the copyright owner depend on the type of work they have created – whether literary, artistic, a sound recording, or other. Generally, copyright rights can include the right to reproduce the work in material form, publish it, perform and communicate it to the public, make an adaptation of it, copy it and cause it to be seen or heard it public.
Therefore, copyright can be used as a powerful tool to both commercialise and control the use of your creations.
Assignment and Licensing
As copyright is a form of personal property, the owner can also assign or license their rights to others.
Assigning copyright ownership to someone else is similar to selling your house, clothing or car. Once the transaction is complete, you no longer own it.
Alternatively, you might choose to create licences. Following the house metaphor, a licence of your IP is similar to renting a house. It grants permission to someone else to use your work for a period of time. However, during the term of the licence, you still remain the copyright owner.
Infringement occurs if a person who isn’t the copyright owner does any act that is the exclusive right of the copyright owner, without a licence or their consent.
1. Myth one: “It’s not copyright infringement if I only use 10%”
While knowing how to calculate percentages is great for working out sales discounts, it won’t help you avoid copyright infringement. Copying only a small percentage of someone else’s work is still copying.
Under Australian law, you will infringe copyright if you use the whole of the work or a ‘substantial part’. This test is a qualitative one, not quantitative. In other words, a court will look at what you have taken from the original work, not how much. If the part you use is deemed by the court to be a ‘material’ or ‘vital’ part of the work, then it is substantial.
The possible source of this 10% myth is found in the legislation itself. Did you ever wonder why your teachers would photocopy only a small section of a textbook, leaving you to locate the rest yourself?
The Copyright Act provides a defence to infringement in certain circumstances involving research or study. Within this, there is reference to only taking a “reasonable portion” of the work. Depending on the type of work, this research and study defence can allow for the use of 10% of the work’s pages or words. Remember though – this is an exception to the rule, and one with lots of criteria to meet.
2. Myth two: “As long as I credit the original author / creator / artist, it’s fine”
Long story short: No, crediting the author will not prevent copyright infringement. If you copy, reproduce, publish or do with a work any other exclusive right of a copyright owner, crediting that author won’t save you. This is still copyright infringement.
Plot twist: You still have to credit them.
Although crediting the author won’t prevent copyright infringement, it’s an essential requirement to avoid infringing their moral rights. All creators have moral rights relating to their work. This includes the right to be attributed as the author. In other words, because of moral rights you must credit the author.
Confused? Let’s break this down. Moral rights always remain with the original ‘author’ (creator) of the work. However, the author and the copyright owner may not be the same person if the author has sold (‘assigned’) their rights.
Therefore, you’re going to need to find out who’s who.
First, find out who the copyright owner is and ask for permission to use the work. If they say no, you cannot use it – even if you credit the author. If they say yes, they may require payment or ask you to sign a licensing agreement. Make sure to follow any of their conditions.
Secondly, find out who the author is (if different from the copyright owner). This is the person who you need to credit as the author of the work.
3. Myth three: “If there’s no © symbol or it doesn’t state that it’s subject to copyright, it’s not protected”
Although we see the © pop up everywhere, it’s absence doesn’t give you a free pass to copy someone’s work.
In Australia, there is no requirement to register copyright. Copyright protection is automatic as soon as someone creates an original work. When an idea or concept is put onto paper, made electronically, captured as a photo, created in clay, sung into a recording device…(you get the picture) it is automatically protected by copyright.
There’s no application process, no need to pass GO. The protection comes to life when the work does. From that point onwards, if someone knowingly infringes your copyright, you can commence legal action against them. No © required.
The Australian system of automatic copyright protection is notably different from that in the U.S. If you are a U.S. citizen creating works in the U.S. copyright protection is automatic when the work is created. However, unlike in Australia, in the U.S, you are required to register your copyright if you want to enforce your rights or bring legal action against an infringer.
4. Myth four: “If I hire an independent contractor to do work for me, then I own the copyright in their creations”
A general rule of copyright law is that the author of a work is the first copyright owner.
This means that if you hire an independent contractor to create something for you, they own the copyright in that work. It doesn’t matter if you paid them or instructed them to create it. Unless, there’s an agreement stating otherwise, you do not own the copyright.
As a result, it’s important to enter clear contractual agreements with independent contractors before they begin their work. These contracts should explicitly deal with who is entitled to copyright in any work created.
Notably, Australian law does provide some exceptions to the general rule. These apply when an artist is commissioned by another person to take a photograph (for private or domestic purposes), to paint or draw a portrait or to make an engraving, and they are paid for this work. In these circumstances, the basic rule doesn’t apply and the artist is not the copyright owner. Rather, the person who commissioned them to create the work is.
If you are an employee, rather than an independent contractor, and the ‘commissioned works’ exception above does not apply, read this next point carefully. If you create any works (literary, dramatic, artistic or musical) as part of your employment, your employer is the copyright owner of that work. This applies whether you are casual, part time, full time, on a temporary contract of service or working under an apprenticeship.
If build create, compose, paint or write something while at work…your employer owns the copyright. Notably, ‘computer programs’ fall within the definition of literary works under the Copyright Act. Therefore, these laws also apply to software developers, programmers and coders.
Exceptions apply to journalists who create works under the terms of their employment. These are subject to specific requirements, which will not be covered for the purpose of this article. If you’re an employed journalist and would like further information about how copyright ownership laws apply to you, feel free to contact us at email@example.com.
It is important to be aware of the different rules and the fact that each of these arrangements can be modified by express agreement between the parties.
Top tip: If you want to be the copyright owner, make sure this is in writing and signed by both parties before any work is made.
5. Myth five: “The original copyright owner has died so anyone can use their work”
Although the copyright owner may have passed, the copyright in their work survives. Since 1 January 2019, when it comes to literary, dramatic, musical and artistic works, copyright generally exists for the author’s life plus another 70 years after their death.
Different principles apply where the author is unknown or when dealing with sound recordings and films. In these scenarios, it will be relevant when the work was made and when it was made public.
Once the copyright expires, the work becomes part of the ‘public domain’ and anyone is free to use it.
However, the he general rule to remember is: despite the death of the copyright owner, the copyright lives on. (Cue Titanic theme music)
6. Myth six: “If it’s on the Internet or social media, anyone can use it”
We don’t know where this myth was born, but it’s one that needs to be busted. Whether a work exists in the real world or the digital world, copyright laws apply. A person does not waive their rights as the copyright owner when they publish their work online.
Unless they have granted permission for their work to be used (by a specific person or by the public generally), or an exception to infringement applies, using the work is off-limits.
Linking back to Myth 2, crediting the author or ‘tagging’ them is not enough if you don’t’ have their permission to use the work.
The best way to avoid any trouble is to always assume that a work is protected by copyright. If the owner states that anyone is free to republish or copy their work, that’s great. If it’s unclear, check any associated terms or conditions or contact the copyright owner to ask for permission.
7. Myth seven: “I only need the copyright owner’s permission if I’m making money through using their work”
Let’s demystify this once and for all.
If you use, reproduce, publish, copy, or do any act, which is the exclusive right of the copyright owner, without their permission, this is copyright infringement. It doesn’t matter whether you’re making money from this or not.
There are no defences or exceptions under Australian legislation, which allow one to escape copyright infringement because their use of the work is non-commercial.
8. Myth eight: “Other people are infringing the copyright so I can too”
Two wrongs don’t make a right. A hundred wrongs don’t make a right. Remember when your parents asked you: “If your friends jumped off a cliff, would you do it too?”
Don’t jump off that cliff.
Even if someone else (or lots of people) has infringed the copyright in a work, the copyright still exists. If you follow the crowd and also infringe the copyright, you are liable. The copyright owner may go after each and every infringer or they may just come after you.
9. Myth nine: “If someone copies my idea, they’ve infringed my copyright”
Welcome to the elusive idea / expression dichotomy. When it comes to copyright, the law will not protect an ‘idea’, however, it will protect the ‘expression’ of an idea.
So, what does this mean?
If you have an idea for a song, film, painting, novel or anything else, that idea is not protected by copyright. Telling someone about that idea does not equate to ‘expression’ in terms of the law. If they decide to copy your idea, they have not infringed your copyright because no copyright existed.
However, don’t despair. While copyright law won’t help you here, if someone uses an idea you have told them in confidence, this may fall into the realm of confidential information. This is protected under different laws and principles.
To gain copyright protection, bring your idea into the physical or digital world. If you express the idea – (i.e. write a book, jot down some lyrics, record a song, draft a script, film some movie scenes or put paint to canvas) then this expression may be protected by copyright.
1. Copyright infringement involves using the whole or a ‘substantial part’ of someone else’s work without their permission. Copying 50%, 10%, 5% or even 1% may still be infringement if the part copied is a ‘substantial part’.
2. You must credit the original author to avoid infringing their moral rights. However, this is not enough to prevent copyright infringement. The best way to avoid trouble is to credit the original author AND gain the copyright owner’s permission to use the work.
3. Copyright protection is automatic. A work doesn’t need to state that its copyrighted or use the © sign to be protected.
4. Generally, the author of the work (or maker of the subject matter) is the first owner of the copyright. Independent contractors will be the owner of any copyright in works you hire them to create, unless there is a contract stating otherwise. Make sure this is signed before they begin their work. Exceptions apply in the case of particular commissioned artistic works.
5. Copyright protection does not expire with the death of the author. The typical duration of copyright protection is the author’s life plus 70 years after their death.
6. Work published on the Internet and social media is still protected by copyright.
7. If you’re using someone else’s work, it is irrelevant whether you’re making money or not. Non-commercial use is still copyright infringement.
8. Each and every person who copies or uses someone else’s work without their permission is infringing their copyright. Whether you’re the only one or one of 10,000, you are breaking the law. If they want to sue you, they can.
9. Ideas are not protected by copyright. Expressions of ideas (putting your novel idea onto paper, recording a song, drawing a picture, etc.) are protected by copyright.
Written by: Alyce Evans and Jennifer Tutty
The information in this article is of a general nature. It does not constitute formal legal advice, and should not be relied on as such. Please see the full disclaimer in our website terms. Please contact Studio Legal if you are seeking advice about a specific legal matter.