Technicon Industries v Caroma Industries
Copyright Law & Practice Symposium
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How you get copyright
April 2009
The information on this page is not legal advice.
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| Copyright protection is automatic |
Certain
forms of expression – such as text, photographs, music, computer
programs and films – are automatically protected by copyright under the
Copyright
Act.
You do not need to do anything to get copyright: if your work meets the
requirements for protection in the Copyright Act, it is protected as
soon as it is made. The work must be:
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| No government registration system in Australia | There is no government registration system for copyright protection in Australia.
You do not need to publish your work, put a copyright notice
on it, or to do anything else to be covered by copyright — the
protection is free and automatic. There are no forms to fill in, and
there are no fees to be paid. You do not have to lodge your work with
a government agency or anwhere else. | |
| Private registration services | There are some private companies that offer registration services. The registration fee may not give you any additional legal protection. | |
| Copyright protection overseas | As a result of international copyright treaties, such as the
Berne Convention and the Agreement on Trade Related Aspects of
Intellectual Property (TRIPS), Australian works are protected
automatically in most other countries. Similarly, works from most other countries are automatically protected in Australia. Some countries, including the United States and Canada, have government registration systems. While it is not necessary to register for protection, registration can provide benefits in some cases in those countries. In some cases, registration with a foreign government copyright office, such as the United States Copyright Office, can assist with court proceedings in Australia, under sections 126A and 126B of the Copyright Act. | |
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The “copyright notice” and © symbol | The
copyright notice consists of the symbol ©, followed by the name of the
copyright owner and the year of first publication: for example, “© Gus
O’Donnell 1968”. For sound recordings, the letter “P” (for phonogram)
in a circle or in brackets is used instead of the “C” in a circle. The
“copyright notice” does not need to be on something to ensure that it
is protected by copyright in Australia or in most other countries, but
it does remind people that the work may be protected. It also lets
people know who is claiming copyright. | |
| Using a pseudonym or “nom de plume | Generally,
while there is no legal problem under Australian law in using a
pseudonym or “nom de plume” in a copyright notice, you should use your
real name. As one well-known commentator has stated, “the use of a
pseudonym would frustrate the intent ... of making traceable the
copyright proprietor” (Arpad Bogsch, The Law of Copyright under the
Universal Convention, Sijthoff, Leydon, 1972, p. 28). | |
| Copyright owned by company | If a
company owns copyright, the copyright notice should include the name of
the company. However, if someone trades under a business name, the
correct name to put in the copyright notice is not the business name
but the names of the relevant individual or individuals. The reason for
this is that copyright is a form of property, and a business name is
not a legal entity, and therefore cannot own property; only individuals
and incorporated bodies such as companies can own property (including
copyright). You could, however, use a formulation such as “© Bob Jobs
t/as Jobs4U 1983”, where the “t/as” indicates that at that time Mr
Jones was “trading as” that particular business name. | |
| "Dynamic" works | If you are regularly updating a work (such as material on a website, or a computer program), you can include all the years from first publication to the present: for example, “© Gus O’Donnell 1998–2007”. | |
| “All rights reserved” | Sometimes you will see the words “All rights reserved” as well as, or instead of, the copyright notice. This is not necessary under Australian law, nor in most other countries. However, if the first publication of your work will be in a country outside Australia, you should seek advice from a solicitor with the relevant expertise. | |
| How do I prove I’m the copyright owner if there’s no registration system? | If
there’s a dispute about who created something protected by copyright,
it may need to be resolved by a court. A court would look at all the
relevant evidence. The most important evidence would usually be oral
evidence from the creator and from people who saw the material being
created or who saw early copies. Other evidence may include drafts of
the work.
There are a number of reasons for this. First, someone who goes to court
claiming they own copyright when they don’t runs very large financial
risks, as they might have to pay not only compensation but also both
their own and the other side’s legal costs. Second, there are
provisions in the Copyright Act which allow people who have been
groundlessly threatened with copyright infringement to take action
against the person making the threat. Third, if someone claims in court
that they have created a copyright work when they haven’t, they risk
perjury charges (a criminal charge for lying to the court). |