It is important to have a basic understanding of copyright law to enable you to make the right decision regarding any proposed use of copyright material.
In particular, anything you’ve heard about making, say, 5 changes to something, or only using a certain number of words or a certain percentage of someone else’s material is likely to be wrong!
- Copyright protection is free and applies automatically when material is created.
- There is NO registration system for copyright in Australia.
- Copyright does not protect ideas, information, styles or techniques or names, titles or slogans.
- There are no general exemptions from copyright law for nonprofit organisations.
- There are some situations where copyright law allows people to use copyright material for their own personal use, but these are narrow and specific.
- Generally, Australian copyright law applies to actions that take place in Australia, even if the material used was created or first published in another country.
What is protected?
- Text (“literary works”) such as journal articles, novels, poems, screenplays, song lyrics and reports;
- complimations and computer programs (a subcategory of “literary works”);
- artistic works such as paintings, drawings, cartoons, sculpture, craft work, architectural plans, buildings, photographs, maps and plans;
- dramatic works such as choreography, screenplays, plays and mime pieces;
- musical works: that is, the music itself, separately from any lyrics or recording;
- cinematograph films: the visual images and sounds in a film, video or DVD are protected separately from any copyright in works recorded on the film or video, such as scripts and music;
- sound recordings: the particular recording itself is protected by copyright, in addition to, for example, the music or story that is recorded;
- broadcasts: TV and radio broadcasters have a copyright in their broadcasts, which is separate from the copyright in the films, music and other material which is broadcast; and
- published editions: publishers have copyright in their typographical arrangements and layout, which is separate from the copyright in works reproduced in the edition (such as poems or illustrations or music).
What is NOT protected by Copyright?
Ideas, Concepts, Styles, Techniques and Information
Copyright does not protect ideas, concepts, styles, techniques or information. For example, if someone writes up their ideas for an ad campaign, the written text may be protected by copyright but someone just using the ideas in it won’t necessarily infringe that copyright.
Names, Titles and Slogans
Some text is too small or unoriginal to be protected by copyright. For example, single words (even invented words), names, titles, slogans and headlines are unlikely to be protected by copyright.
People are not protected by copyright. So, for example, someone doesn’t own copyright merely because they are in a photo or are depicted in an illustration.
Who owns copyright?
The usual rule is that whoever creates the material owns copyright, but this rule is always subject to any agreement to the contrary.
Also, there are a number of situations under the Copyright Act where someone other than the creator might own copyright. For example, unless there’s an agreement to the contrary:
- material created by employees (rather than a freelancer) is owned by the employer (this general rule does not apply to commissioned material); and
- material created for a government department or agency is owned by the relevant government (in general this does not apply to local government).
How long does copyright last?
Copyright lasts a long time – the current general rule is that copyright lasts until 70 years after the person who created the material dies.
There are, however, lots of exceptions to this rule. For example, copyright has now expired in:
- photos taken before 1955;
- other artworks created by people who died before 1955;
- text and images published anonymously or under a pseudonym before 1955 (where you can’t reasonably work out who created the material); and
- text both published before and created by people who died before 1955.
Images and text that fall into these categories are referred to as being in the “public domain” and may be freely used.
However, duration of copyright varies from country to country, and where someone wants to use copyright material in another country, they may need advice as to whether or not they need permission.
“Substantial part” … using part of a work
One of the tricky issues in copyright is working out whether or not permission is needed if someone is just using a part of something protected by copyright. Under copyright law, permission is usually needed if someone is using either all or a “substantial part” of something that’s protected by copyright.
Something will be considered a “substantial” if it’s an important, essential or distinctive part. In many cases, a part may be “substantial” even though it’s quite a small part. The purpose for which something is being used is also relevant; if something is being used for a commercial purpose it’s more likely permission will be needed.
Is permission ALWAYS needed?
Permission is usually needed to use all or a “substantial part” of someone else’s work.
In a newspaper context, however, there are some situations where permission isn’t needed – for example, if material is being used as a “fair dealing” for reporting news, or for criticism or review or for parody or satire. These “exceptions”, however, are generally unlikely to arise where people are running advertisements.
Material on the internet
There is no general rule that if something is on the internet it can be freely used. If someone wants to copy something they’ve found on the internet, a statement on the site may set out how that material may be used without having to contact the copyright owner for specific permission.
In each case it’s a question of reading the “fine print” and seeing whether or not the copyright owner (through the website proprietor, for example) gives permission.
Names & slogans
The Act does not specifically exclude names, titles or slogans from being “literary works” for copyright purposes. However, there have been a number of cases in which Courts have held that particular names, titles and slogans are not protected. In these cases, the Courts have generally arrived at their decisions because the name, title or slogan concerned is not an “original literary work” for copyright purposes. Factors that have influenced Courts in reaching these decisions include:
- the word/phrase was not substantive to constitute a “work” for copyright purposes; or
- the phrase or sentence was commonplace.
Examples of names, titles or slogans which Courts have held were not protected by copyright include:
- Opportunity Knocks, the title of a television program; and
- The Man who Broke the Bank at Monte Carlo, the title of a song.
The Courts have not said that a name, title or slogan can never be protected by copyright. However, other areas of law will usually be more relevant.
If someone uses a name or slogan that is either the same or similar to a name or slogan that someone else is using, they may face legal action on the basis that the business or service is being passed off as having some connection with that other person or business that doesn’t exist, or on the basis that the public is being misled or deceived.
Is permission needed to use a map?
Unless copyright has expired or one of the exceptions to infringement applies, permission is needed to copy all or a substantial part of a map into a newspaper or onto a website.
Even a very small part of a map may be “substantial” for copyright purposes.
The risk of infringing copyright will be reduced where someone has created their own map from a number of different sources but this will depend on all the facts. On the other hand, someone who creates a map entirely from their own on-the-ground observation and by making their own choices as to what to include in the map, won’t infringe copyright, even if their map is similar to other maps.
Maps and charts relating to the same geographical area will usually resemble each other.
There is an important distinction between the information in maps and charts (for example, names and distances between geographical features depicted), which is not protected by copyright, and the expression of information in a particular map or chart (for example, selection of what to include, the colour schemes, symbols, keys and contour lines), which is protected by copyright.
Protection for logos
There is no rule in copyright law that permits reproduction of a logo if a percentage of it is changed, or if a certain number of alterations are made. If you put two logos side by side and you can identify important parts from the original that have been copied, it’s likely that an important part of the original has been reproduced.
For example, the “Aussie Home Loans” logo consisting of three rectangles on top of each other, incorporating the three words and topped by a triangle (to represent a house), was found to be protected by copyright as an artistic work. A rival company used a similar logo in which the word “loans” was replaced by “builders”. Other changes had been made, including the addition of a chimney and changes to the font, proportions of the triangles and shading, but the Court had no difficulty in finding the overall appearance of the two logos was so similar that infringement had taken place.
Some quotes are too small to be a ‘work’
If a quote isn’t an extract from a longer work, but “stands alone” as a short phrase, it may be too small or unoriginal to be a “work”, and thus not protected by copyright. For example, single words and short combinations of words such as names, titles, slogans and headlines are generally too short to be “works”. Similarly, a pithy off-the-cuff remark may not be a “work”.
In one case, the Court said: “An original literary work must be the product of some substantial application of knowledge, labour, judgment, or literary skill on the part of the author of it, but the precise amount of these several things which is required cannot be defined and depends largely on the special facts of the case and must in each case be very much a question of degree.”
In Australia, any photo taken on or after 1 January 1955 is protected by copyright. Additionally to the general rules already discussed, unless otherwise agreed:
- copyright in commissioned photos taken before 1 May 1969 is owned by the person who commissioned them;
- copyright in commissioned photos taken on or after 1 May 1969 and before 30 July 1998 is owned by the person who commissioned them, but the photographer has a “right of restraint” over uses other than those for which the photos were commissioned; and
- photographs taken on or after 30 July 1998, copyright is only owned by the client if a photo was taken for “private or domestic” purposes (portraits or weddings) and the photographer has a “right of restraint” over other types of uses (including in ads).
In some cases, areas of law other than copyright may need to be taken into account when using photos. For example:
- photos taken in Commonwealth reserves such as Uluru may need a clearance; or
- photos taken of the Sydney Harbour Foreshore areas may need to be cleared.
Is permission needed to photograph a building?
Generally no, although a building is protected by copyright, a special exception in the Act allows buildings to be photographed without permission.
Is permission needed to photograph artworks in public places?
There’s a provision in the Act that allows photos to be taken of a “sculpture or artistic works” which is publicly displayed “other than temporarily”. Permission to photograph other public art, such as murals, will usually be needed.
Is permission needed to photograph people?
People are not protected by copyright but using a person’s image without permission raises issues under other laws.
These areas of law concern conduct which may mislead or deceive the public and may particularly come into play if a photograph of a well-known person is to be used, for example, in advertising. In some cases, photographs or the context in which they are used may also raise issues under defamation law.