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A wide range of materials may be protected by copyright. Under Australian copyright law, the materials protected by copyright are split into two main groups, known as 'works' and 'other subject matter'.
The 'works' category includes literary, dramatic, musical and artistic works. Literary works include all written materials, irrespective of their quality as works of literature, ranging from novels to lyrics and computer programs. 'Artistic' includes materials such as photographs, drawings, diagrams and paintings.
The 'other subject matter' category includes sound recordings, films, television and sound broadcasts and published editions (the typographical arrangement of works that have been published).
In some cases, material will display a copyright notice consisting of the © symbol, the name of the author and the year of creation. However, material that falls within the protected categories can be subject to copyright even though it does not contain a copyright notice.
The broadest range of rights applies to materials that fall within the 'works' category while materials in the 'other subject matter' category attract a lesser set of rights.
The owner of the copyright in a work has the exclusive right to publish, reproduce or make copies, communicate to the public in electronic form (eg broadcast, email, make available online), adapt, and publicly perform the work.
The owner of copyright in other subject matter has the exclusive right to make copies of and electronically communicate the subject matter to the public. Additional rights apply to particular kinds of subject matter: the owner of copyright in a sound recording has the right to cause the recording to be heard in public; the owner of copyright in a film has the right to cause it to be seen or heard in public; and the owner of copyright in a sound or television broadcast has the right to re-broadcast the broadcast.
You should be aware that, in addition to these rights (commonly referred to as economic rights), individuals who create works and films also have certain moral rights.
Moral rights were introduced into Australian law in 2000 and are personal rights belonging to the creators of copyright material. They apply to all 'works' (i.e. literary, dramatic, musical and artistic works) and films.
The principal moral rights are:
Unlike the economic rights in copyright materials, moral rights cannot be sold or transferred. They can be exercised by the original creator even after he or she no longer owns copyright because it has been transferred to someone else. This means that as well as obtaining permission from the copyright owner to use the material, you may need to take additional steps to locate the original creator of the copyright material to obtain permission to make use of it.
Recognition of moral rights requires you to ensure that the original creator is clearly identified as such, using any reasonable means of identification or, where requested by the creator, the particular form of identification specified. You should also ensure that you do not use copyright material in a way that would detract from the creator’s honour and professional reputation, whether by altering or distorting the material or exhibiting an artistic work in an inappropriate context.
Copyright in a work or subject matter may be owned by the original creator, the joint creators of the material or someone else.
The basic rule of copyright ownership is that the first owner of copyright is the person who created the material, unless one of the exceptions described below applies. Where the copyright material has been produced by two or more persons and it is not possible to separate out each person’s individual contributions, copyright is jointly owned. If it is possible to separate out the parts of the material created by each person, then each contributor owns copyright separately in the part he or she has created.
Copyright will be owned by someone other than the person or persons who created the material if there has been an assignment (or transfer) of copyright to another person or organisation. For a transfer of copyright to occur, there must be a written document stating that copyright is being assigned which is signed by the person who is making the assignment of copyright to the other party.
Exceptions to the usual rule of first ownership of copyright apply where the material has been produced by an employee in the course of his or her employment and in the case of certain commissioned photographs, portraits, films and sound recordings. An exception also operates in relation to material that has been commissioned by the State. The operation of any of these exceptions to the general rule can be varied by agreement between the parties.
Entities such as corporations or governments will usually own the copyright in material created by an employee if the material was produced by the employee as part of the duties he or she has been engaged to perform. For example, Education Queensland will own the copyright in material produced by its employees during the course of employment. Whether a work will be considered to have been made by an employee in the course of his or her employment depends on the individual circumstances of each case. However, for material produced by students, the basic rule of ownership would usually apply, i.e., copyright remains with the individual student who created the material or, where it is the result of combined efforts, by the group of students who jointly created it.
Where the employer is the publisher of a newspaper, magazine or periodical, the employer owns copyright in literary, dramatic and artistic works produced by employees for the purpose of inclusion in a hard copy or on-line version of the publication.
Copyright in a commissioned work will usually continue to belong to the person who produced the material rather than the person who commissioned it, notwithstanding that the person who commissioned the material has also paid for the work. Special exceptions to the general rule apply in the case of commissioned sound recordings and films, in which case copyright belongs to the person who commissioned the sound recording or film rather than the person made it, subject to any agreement to the contrary. Likewise, where a person is commissioned to produce a photograph for a private or domestic purpose, or a painting, drawing or engraving, copyright belongs to the person who commissioned the work. Apart from photographs produced on commission for a private or domestic purpose, copyright in commissioned photographs belongs to the photographer.
Where copyright material has been commissioned by the State, copyright automatically belongs to the State if the material has been produced under the State’s 'control' or 'direction'. As with the other exceptions to the general rule of copyright ownership, this provision can be varied by agreement between the parties. To avoid uncertainty about the operation of this exception where material is commissioned by a government agency, it is recommended that the copyright position is negotiated during the commissioning process and that the relevant documents contain clauses dealing with copyright ownership.
Contrary to popular belief, there is no general exception that allows a person to copy 10% of a work without infringing copyright. Where only a part of a work has been copied, the issue is whether a 'substantial part' of the work has been copied. There are no hard and fast rules to determine what will amount to a 'substantial part' and it will depend on the individual circumstances of each case. A small part can be regarded as substantial if it is an essential part of the work and is to be used in a way that could damage the market for the original work.
The main exception to copyright infringement is the 'fair dealing' or 'fair use' exception. The fair dealing exception permits the use of even a substantial part of the copyright material without the permission of the copyright owner if the use is for the purpose of research or study, criticism or review or for reporting the news. However, not all dealings with copyright materials for these purposes will be considered to be 'fair'. Whether a dealing with copyright material can be considered as fair, and therefore not an infringement, will depend on the circumstances of each case.
Various factors are taken into account to determine whether a particular exercise of copyright rights amounts to a fair dealing. In the case of reproduction for research or study, it is necessary to consider the purpose and character of the use; the nature of the material, the availability of the material, the effect of the use on the copyright owner’s market, and the amount and substantiality of the portion copied. This is where the 10% rule comes into play. The rule provides that it is a fair dealing to make a single copy of a journal article, one chapter or 10% of a book of more than 10 pages, or 10% of the number of words in the work that is in electronic form.
There are other situations where copyright material can be used without first obtaining the copyright owner’s permission, but it will still be necessary to pay a royalty to compensate the copyright owner for the use. For example, copying of printed materials in hard copy or electronic form for educational purposes by Education Queensland and other teaching institutions is done under a statutory licence which requires the payment of royalties to an approved collecting society (Collecting Agency Limited, known as CAL) for distribution to authors and publishers.
Yes, copyright does apply to the Internet.
Under digital copyright laws, copyright owners can control the use of their material on the Internet. A copyright owner has the right to stop someone from copying his or her material, distributing it electronically or putting it on a website where it can be accessed by the public. These rights apply to all types of content, from text to video to computer programs. If copyright material is included in a website or distributed in digital form (e.g. as a compressed file or as an email attachment) without the permission of the copyright owner, copyright is likely to have been infringed.
Copyright also covers everything that is first published on the Internet. Any material such as text, software, graphics and photographs that that is contained within a website may be protected by copyright. The usual rule applies: if you want to use any of this material you will need to obtain permission.
Australian copyright law applies to material produced or published in a very wide range of overseas countries which, like Australia, are signatories to the Berne (Copyright) Convention or are members of the World Trade Organisation.
For example, Australia and the United States are both signatories to the Berne Convention and are members of the World Trade Organisation. Therefore material produced by US citizens or works that are first published in the US will receive the same copyright protection in Australia as material created or published in Australia or by an Australian citizen.
Educational institutions enter into statutory licence arrangements with copyright collecting societies (which represent copyright owners) under which they agree to pay remuneration to the relevant collecting society in return for permission to use copyright materials (e.g. by reproducing or performing them) for educational purposes.
Education Queensland has entered into statutory licences with a number of collecting societies:
Each educational licence permits use of the particular category of copyright material, subject to certain conditions.
For further information on the operation of each of the statutory licences, the conditions applying to the use of copyright materials and how to obtain permission to use copyright materials, you should consult the Queensland Department of Education Manual ICT-PR-004: Using the Departments Corporate ICT Network.