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 have little respect for it and/or a poor understanding of what it actually means. 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

• 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.
• Something short and generic, like a title or a common catch-phrase
• Something alive

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 in the law 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:

1. 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.
   
   
2. Is my use defamatory to the copyright owner?
   
   If yes, then you may be at risk of being sued for defamation and/or loss of income.
   
   
3. Did I make reasonable attempts to obtain permission to use the IP?
   
   If no, then your use of the IP may be risky.
   
   
4. 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.
   
   
5. What affect 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.
   
   
6. 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 very 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.
   
   
7. 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.

 

 

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