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An overview of the key elements of copyright law in Australia.
If you ask most people they will tell you copyright is about protecting creative works. That is true. And this is a good starting point for understanding copyright. It is designed to incentivise the creation of new content and to provide a legal framework for the management of that content. It is specifically designed to facilitate the commercial exploitation of creativity.
But copyright has a greater purpose than just making money. Copyright is also about the sharing of knowledge. It encourages the dissemination of knowledge by incentivising publication which publishes information to the public. Copyright is meant to provide a balance between incentivising creativity by allowing authors to make money from their creations while also encouraging the dissemination of knowledge to the public through publication and sharing. Copyright should be a win–win.
Copyright is meant to provide a balance between incentivising creativity by allowing authors to make money from their creations while also encouraging the dissemination of knowledge to the public through publication and sharing. Copyright should be a win–win. Its ultimate goal is a rich and every growing pool of free knowledge – the public domain.
What is copyright?
Copyright is an area of law that gives creators rights to control how others use their creations. It is one of the categories of “intellectual property law”, along with patents, trade marks and designs law. While patents protect inventions and trade marks protect brand names, copyright protects creative works like books, films, music and art.
The source of copyright law
In Australia, copyright law is set out in the Copyright Act 1968 (Cth). It outlines many aspects of copyright including:
- what is protected by copyright
- what rights make up copyright protection
- how long copyright protection lasts
- what constitutes an infringement of copyright
- what does not constitute an infringement of copyright
The Copyright Act, as well as associated copyright regulations, copyright policy and international copyright issues are managed by the Department of Communications and the Arts.
Material protected by copyright
Broadly, copyright protects:
- ‘Works’, including literary works (books, magazine articles, etc), dramatic works (theatre and dance), music, artistic works (paintings, drawings, photographs, etc); and
- ‘Subject matter other than works’ which includes films, sound recordings and broadcasts.
While many of these categories seem obvious, some of the things that they include might surprise you. Copyright can cover items you may not ordinarily think of, like databases, computer software and costumes. If you are unsure if something is protected by copyright, it’s usually best to assume it is.
Our information on material protected by copyright: Material protected by copyright provides a more comprehensive look at copyright protected content.
Requirements to gain copyright protection
Importantly, copyright protection in Australia is free and automatic from the moment it is in a material form (such as the words of a poem being written down or a song is recorded). You do not apply for copyright protection. Likewise, there is no system of registration. And there are no fees to be paid. Being free and automatic, and not requiring an application, registration or the payment of a fee sets copyright apart from most of the other intellectual property protections.
To get copyright protection in Australia you do not need to publish your material. You do not need to send yourself a copy of the material by registered post. And you do not need to put a copyright notice on it. So there is no need to include the ‘c in a circle’ symbol with your name and date. But it can be useful in evidencing you are the copyright owner and allowing potential users to identify and contact you. We have a page on the copyright notice: The copyright notice with more information.
In addition to content being one of the types protected by copyright, content must also meet some minimum requirements. In order to be protected, all literary, dramatic, musical and artistic works must be:
- An expression, not an idea – Protection is not given to ideas, facts or information: Material outside of the scope of copyright in Material not protected by copyright as is, rather what is protected is the form in which the idea, facts or information is expressed. Justice Farwell in Donoghue v Allied Newspapers  Ch 106 declared that, ‘If the idea, however original, is nothing more than an idea, and is not put into any form of words, or any form of expression such as a picture, then there is no such thing as copyright at all’. The court in the same matter stated that what is protected in news articles is ‘the particular form of language by which the information which is to be conveyed is conveyed.’
- In a material form – The material must be reduced to a material form. Section 10 of the Copyright Act states that material form ‘includes any form (whether visible or not) of storage of the work or adaptation, or a substantial part of the work or adaptation, (whether or not the work or adaptation, or a substantial part of the work or adaptation, can be reproduced).’ Writing something down, making a video or audio recording of it or notating a musical score are examples of reducing something to material form.
- Original – The material must be original. The Copyright Act does not define ‘original’ but case law has established the originality threshold, which is very low; the material must not be a mere copy.
- Made by a human author – The material must have a human author who has exercised skill and labour in the creation of it. That’s why Naruto was found not to have copyright in her monkey selfies!
Rights in copyright
The main group of rights in copyright are called economic rights.
Owners of literary, dramatic and musical works have the right to reproduce the work, publish it, communicate it online, adapt it and perform it in public. Owners of artistic works have the right to reproduce, publish and communicate. The owners of sound recordings and films can make a copy of the recording or film, play the recording or film in public and communicate the recording or film online.
Creators also have moral rights over their works, which protect their right to accurate attribution and to not have the work treated badly. And performers have rights over their performances, such as to stop bootlegging. Our information on the rights in copyright: Rights in copyright provides a more comprehensive overview of the economic and other rights in copyright.
Duration of copyright
The rights provided by copyright only last for a certain amount of time, and the duration of copyright depends on the type of material. For example:
- Works are generally protected for the life of the creator plus 70 years, or if you don’t know who the author is, 70 years from when they were made public or created.
- Sound recordings and films are protected for 70 years from when they were made public, or if they haven’t been made public, from when they were created.
However, the full rules of copyright duration are complex, with the rules changing depending on when material was created, the type of material it is, who the creator was and how much we know about them. Our more detailed information on the duration of copyright: Duration of copyright looks at these situations. We also recommend the Department of Communications and the Arts’ information on their website about the ‘Duration of copyright https://www.communications.gov.au/documents/duration-copyright’, in particular their tables that help to clarify the applicable duration rules.
Ownership of copyright
Generally speaking, for a literary, dramatic, musical or artistic work the author is the owner of copyright: Authors of literary, dramatic, musical and artistic works in Ownership of copyright in the work. The maker of other subject-matter is the copyright owner: Makers of other subject-matter in Ownership of copyright (except for published editions, for which the publisher is the copyright owner).
There are exceptions to these general rules however. Ownership of copyright can be more complicated depending on the parties involved. We have a page that provides a more comprehensive look at who is the owner of copyright: Ownership of copyright.