When you publish in printed, electronic or any other form there are several legal issues you must consider in order to ensure that:
Copyright is a bundle of economic rights which give their owner the exclusive right to do certain things.
Copyright only protects specific “works”, i.e. literary, dramatic, musical and artistic works.
It also protects “subject-matter other than works”, i.e. films, sound recordings, broadcast and published editions.
Copyright does not protect information, ideas, concepts, styles and methods, only their expression in a material form.
In order to attract copyright protection the work must be original, i.e. attributable to the author’s skill and labour, and not copied.
Copyright protection is automatic upon creation of the work, without any need for registration. The symbol © is used to notify people that the work is protected by copyright.
How long does copyright last?
In general, copyright lasts for 70 years after the death of the author of the work. Specific periods apply for subject-matters other than works.
Who owns copyright?
The general principle as well as the exceptions mentioned above can be modified by agreement.
Two or more people can own copyright jointly if they are joint authors, i.e. if their contribution to the copyright material is inseparable, or if they have entered into an agreement to that effect.
Works or other subject-matters containing copyright material by third parties
Copyright material often contains material by third parties which is itself protected by copyright. Ownership of copyright in the newly created work does not affect ownership in the original material.
Copyright in translated works
You need permission from the copyright owner of a literary work to translate it as well as exercise any of the other rights of a copyright owner.
If you want to use an existing translation, you need permission from both the owner of copyright in the underlying work and in the translation.
Use of copyright material
Rights of a copyright owner
Copyright owners have exclusive rights in relation to the use of their copyright material. Those are the right to reproduce, publish, perform, adapt as well as communicate (i.e. make available online or transmit electronically, for example by broadcasting, by email or on the internet) one’s work to the public.
Assigning and licensing
By assigning your copyright, you transfer it to a third party which then owns it.
By licensing your copyright, you grant a third party permission to exercise some or all of your exclusive rights.
Common terms of licence
If you licence copyright material, it is important to determine:
There are three main types of licence:
Exclusive licences must be in writing and signed by the copyright owner. There is no requirement to enter into any other licence in writing, although it is advisable to do so.
In some circumstances, a licence to use copyright material is implied even in the absence of any contract.
Creative Commons is a flexible system of electronic licences and associated databases that allows for creators to selectively grant and retain rights in innovative ways.
There are four main types of creative commons licences, which all imply attribution of authorship:
by Attribution: you allow any use of your work;
nd — No Derivative Works: your work may be used except in a subsequent derivative work;
nc — Non-Commercial: you allow any use of your work except a commercial one; and
sa — Share Alike: you allow any use of your work. Any derivative work must be distributed under the same licence.
Creative Commons licences are irrevocable for the term of copyright.
The use of another’s copyright material without the copyright owner’s consent amounts to a copyright infringement if:
The use of a substantial part of another’s copyright material without the copyright owner’s consent is allowed in limited situations such as fair dealing purposes.
If a court agrees that your copyright has been infringed, you can obtain remedies (eg. injunction and damages).
What are moral rights?
Moral rights are personal rights that connect authors to their work. Moral rights arise automatically. There are 3 types of moral rights:
The author of a work has moral rights in relation to that work. Moral rights cannot be given away, sold or otherwise.
How long do moral rights last?
Moral rights last for the lifetime of the author and 70 years following the author’s death
Moral rights infringement
In principle, any act which is contrary to your moral rights is considered an infringement unless:
You can consent in writing to other people’s specific actions or omissions which would otherwise amount to an infringement of your moral rights.
Defence of reasonableness
There is no infringement of the moral right of attribution and of integrity if it was reasonable in the circumstances not to identify the author or to subject the work to derogatory treatment.
If a court agrees that your moral rights have been infringed, you can get remedies (such as injunction, public apology, damages)
Other relevant issues
If you publish material about people who are identified by name or who can be identified, you must ensure that the material is not defamatory. You may be liable for defamation if:
Defences to a claim for defamation, include honest opinion, justification/truth and qualified privilege.
For more information, see the Information sheet Defamation of the Arts Law Centre of Australia.
If your publishing project includes the production of a film, you must obtain all the necessary authorisations (or clearances) to incorporate copyright material belonging to others.
For more information, see the Short Film Competition - Producer’s Guide of the Arts Law Centre of Australia and the Australian Copyright Council’s information sheet Filmmakers & Copyright.
Arts Law Centre of Australia (www.artslaw.com.au),
Australian Copyright Council (www.copyright.org.au).
Copyright Agency Limited (CAL) (www.copyright.com.au). CAL manages copyright on behalf of creators.
Viscopy (www.viscopy.org.au) manages the rights of its visual artist members.
Creative Commons (www.creativecommons.org.au)
This fact sheet is general. It does not constitute, and should be not relied on as, legal advice. The Law and Justice Foundation recommends seeking advice from a qualified lawyer on the legal issues affecting you before acting on any legal matter.
The information in this fact sheet is current at 1 August 2010.
This fact sheet is based on the laws applicable in Australia. However, information provided in this fact sheet in relation to a State or Territory should be read as relevant for that State or Territory only.