A Short Guide to Copyright Law in Australia

Sharon Givoni Consulting Arts and design, Copyright, Intellectual Property, Protecting ideas, Street art

Only one thing is impossible for God: to find any sense in any copyright law on the planet.[1]

– MARK TWAIN

As the famous quote by nineteenth-century author Mark Twain suggests, and this guide will demonstrate, copyright may be a complex area of the law, but the underlying message is quite simple: don’t copy!

The Basics:

• In Australia, copyright law is governed by the Copyright Act.
• It applies to a broad range of creative, intellectual or artistic forms, often referred to as ‘works’.
• You do not need to register copyright
• Copyright protects the expression of the idea, rather than the idea itself
• There are only limited exceptions to copyright infringement in Australia

How to get copyright protection?

In Australia, copyright protection arises automatically upon the creation of a work. This means that you do not need to register or apply for it, or even use the © copyright symbol in order to have copyright protection.

Nevertheless, it is good practice to display a copyright notice with your works where possible. The © symbol (followed by the author’s name and the year of creation) is often used by creators of original works to remind or warn others that they are claiming copyright.

Is my copyright protected overseas?

While copyright laws vary around the world, there are certain treaties in place, such as the Berne Convention, that allow for reciprocal protection between participating countries.

This effectively means that if someone based overseas copies your work, in most other countries you can still claim copyright infringement. By the same token, if you reproduce a copyrighted work that was created overseas, it is likely to amount to an infringement as well. Understandably, some people may take the view that the risk of being caught copying is very low and choose to take the ‘catch me if you can’ approach. Be wary of being lulled into a false sense of security arising from sheer distance. The borderless society brought upon by the digital age has heightened the risk of getting caught out.

Finally, some countries have systems that allow copyright registration. In the United States, for example, copyright can be registered, although copyright registration is voluntary.

You can’t protect ideas: the idea/expression dichotomy

Before we begin to explore what is protected under copyright law, it is important to first explain that copyright law does not protect thoughts, concepts or ideas. Rather, copyright law protects the expression of ideas in a tangible form. This distinction is referred to as the ‘idea/expression dichotomy’, and is ‘often elusive’.[2]

In order to illustrate the distinction between an idea and an expression of an idea, consider the following examples: an idea for a story is just that—an idea.

However, if you sit down at your computer and type the story out, you will have expressed the idea in ‘material form’, and this is what copyright law protects. Likewise, your idea to paint a flower will not be protected under copyright law. Rather, what will be protected is your actual painting of the flower, as the painting is the expression of the idea.

The fact that ideas cannot be protected may come as a surprise to some people. However, there is a good reason copyright law does not protect ideas. While many people can come up with the same idea, it is how that idea is expressed in a material form that makes it original and worthy of protection. Further, if ideas could be protected, everyone could claim that simply thinking something up would prevent others from using that idea. This would clearly lead to vastly impractical results.

Copyright Law Infringement

Now that we know the definition of copyright and what it protects, let’s consider how copyright may be infringed.

Copyright law aims to prevent copying by giving the creator of original works exclusive rights to exploit those works for a limited time, including:

• the right to reproduce the work (including copying, printing or scanning)
• the right to communicate the work to the public, for example, posting it online
• the right to be remunerated for certain uses of a work, including translations, adaptations, and performances in public.

Essentially, copyright is infringed when someone does any of those acts without permission of the copyright owner.

Reproducing copyright works — Exceptions

It is important to understand that there are many defences to copyright infringement. For example, you can make recordings of television shows to watch later at home under the ‘time-shifting’ exception or copy songs from a music CD to your iPod for personal use under the ‘format shifting’ exception. A detailed discussion on this is beyond the scope of this article.

Fair dealing defences in Australia are somewhat narrow and limited to very specific uses of the copyright work. The main fair dealing defences relate to:

• Research or study
• Parody or satire
• Criticism or review
• Reporting the news

These narrow purposes do not appear in all that many situations. For example, research or study applies to educational settings, and criticism and review only apply if the motive is genuine. The law also requires that the work is sufficiently acknowledged. The parody or satire defence is relatively new in Australian copyright law, having only been introduced in December 2006, and is somewhat untested, meaning not many cases before the courts have used it as a defence. In so far as the reporting of news defence might apply, the word ‘news’ is given its ordinary meaning, which is the reporting of events. Fair dealing defences come down to questions of fact, degree and interpretation. Thus, to avoid legal trouble, it is advisable to seek permission before reproducing someone else’s work, posting it online, translating it, adapting it, or incorporating it into your own materials.

Furthermore, there are resources where creators can use certain elements to make works without infringing on another person’s copyright. Copyright free images, music and more can be found in a variety of places, some giving free use of their works and some requiring acknowledgment of the original author if used.

What our firm can do to help

Our intellectual property and copyright lawyers at Sharon Givoni Consulting can help you in understanding whether you own the copyright in certain materials or what you need to do to ensure you get it (such as drafting copyright assignment or licences).

We can also assist you to resolve disputes efficiently if you believe your copyright has been infringed.

Disclaimer: This article is of a general nature and not to be replaced with tailored legal advice.

[1] Mark Twain’s Notebook, 1902-1903

[2] Tamawood Ltd v Henley Arch Pty Ltd [2004] FCAFC 78, 386 [39].