By Daniel Kovacs
Most of us think we know a little bit about copyright but, as Alexander Pope (whose writings, you will be reassured to know, are now well and truly out of copyright) wrote, “A little knowledge is a dangerous thing”!
While many of us create, use and enjoy copyright materials every day, there is widespread confusion about how copyright comes into being, how ownership is obtained and what copyright does and does not protect. Here are some of the more common myths, misconceptions and mistakes.
MYTH 1: Copyright only applies to published, printed materials (such as books) and items like films, recordings and commercial software. In addition to protecting works of literature, music, drama and art, copyright covers many types of utilitarian materials that do not have 'literary' or 'artistic' qualities. For example, databases, business reports, diagrams, logos, spreadsheets, training materials, questionnaires and customised software may all be copyright protected. This is true even if they have not been 'published' in the traditional sense or broadly disseminated.
MYTH 2: Copyright only comes into force once it is 'registered'. Actually, in Australia there is no system for registering copyright. This stands in contrast with other types of intellectual property rights such as trademarks and patents. Copyright protection is automatic once a work is 'in material form' (e.g. reduced to writing or recorded on some other nontransitory medium). No registration or other formality is required.
MYTH 3: There is no copyright unless copyright is claimed or the © symbol appears on a work. Again, this is not the case. There is no requirement to place the © symbol or other copyright notice (such as Copyright 2008 ABC Pty Ltd on a work in order to enforce copyright in it. A work that does not bear these symbols may still be protected.
MYTH 4: The Web is a copyright-free zone. A common misconception is that the Internet is 'the public domain'. However, just because a work is in an electronic form does not mean that the owner has abandoned their copyright in it. Internet users should assume that their rights to use website materials are limited to viewing and use for private purposes, except where it is unambiguously clear from the site that wider use is permitted.
MYTH 5: Once the author of a copyright work dies, the work is no longer protected. This is incorrect. In fact, copyright in most cases now extends for 70 years after the death of the work's author.
MYTH 6: If I make a few changes to material, I won't infringe copyright and won't need to get permission. This is a very common and dangerous myth. Copyright is infringed where a person reproduces a substantial part of a work without the permission of the copyright owner. What is 'substantial' is a qualitative (not quantitative) determination that varies from case to case. (For example, in the past courts have held that four lines of a 32-line poem was a 'substantial part', and that a few bars of a tune, as they were a recognisable part of the song, were a substantial and therefore protectable part.)
MYTH 7: If I copy less than 10% of a work, I will not infringe copyright. While there are specific circumstances set out in the Copyright Act where a 'less than 10% rule applies, these are of very limited application and mostly relate to reproduction of portions of materials for private study and research purposes and not for commercial purposes.
MYTH 8: I paid for the work so I must automatically own copyright. Businesses often engage third party contractors, such as a software developer, freelance writers, graphic artists, advertising agencies and architects to create copyright materials for them. A commonly held misconception – and one that is at the heart of many copyright disputes – is that once payment for such services has been made, copyright automatically belongs to the business that has commissioned the work.
In fact, except in very limited circumstances, the contractor will retain copyright, unless they have transferred it to their client by written transfer. In the absence of a transfer or an agreement otherwise, the client will, generally speaking, have a licence to use the work for the limited purpose for which it was created.
MYTH 9: Employees are the owners of copyright in any works they create. In contrast to the position with contractors, at law employees generally do not own the copyright in materials they create in the course of their employment.
Copyright in these works automatically vests in their employer, unless there is an agreement otherwise.
MYTH 10: I can do absolutely anything I want to the work, and even claim that I wrote it, if I own the copyright in a work created by another. This assumption is false and can lead to disputes. The Copyright Act provides that a creator of a work retains so-called 'moral rights' in works, even if the creator transfers copyright ownership to another. Moral rights are the right to object to derogatory treatments of a work the right to be attributed as the author of a work, and the right not to have another falsely attributed as the author of a work.
“Daniel Kovacs specialises in Intellectual Property law at Kliger Partners, Melbourne, representing number of high profile and well known brands.
See www.kligers.com.au”
