Legal Comment by Mark Illidge

April 2009

The concept of copyright originated in the 1700s and has evolved throughout time corresponding with technological advances. Copyright is a form of intellectual property that protects a wide range of material including poems, movies, sculptures, photographs and computer programs. Once the criteria are met, protection is automatic and it is not necessary to register or publish the material.

Copyright gives the creator or author exclusive rights for a certain time period (generally the creator’s lifetime plus 70 years) including, the rights to:

• publish, distribute or adapt the material;
• transmit the material electronically;
• make the material available online; and
• be publicly identified as the author.

Copyright does not protect ideas or facts, but rather the expression of those facts or ideas in a material form eg. Copyright will not protect the idea for a storyline of a book, but will protect the storyline once the book has been written.

To attract copyright protection the material must also be original which involves the notion of “sweat of the brow” of the creator. This threshold is quite low in Australia and will include a factual database or compilation of existing material, such as White Pages.

Infringement occurs when a person, without the copyright owner’s consent, does or authorises someone else to do any of the acts within the copyright owner’s exclusive rights. For example, burning a CD, selling pirated DVDs, using the chorus of a song in another song or writing a book about Harry Potter. Generally, the courts deal with infringement by orders for damages, account of profits or seizure of the material. However, copyright infringement is also a criminal offence that can attract fines or imprisonment.

Here are some ‘exceptions to the rule’, plus how to protect yourself and your work.

Fair dealing exceptions to copyright include criticism, review, reporting the news and research or study. A reasonable portion can be reproduced in research and study, which is generally 10% of the words or pages or a single chapter. Time-shifting, allows a person to record a radio or television broadcast so it can be viewed at a more convenient time, without infringing copyright. Device-shifting, for example transferring songs from a purchased CD to an mp3 player, is also not an infringement of copyright.

You will infringe copyright if, without the consent of the copyright owner, you do or authorize someone else to do any of the acts within the copyright owner’s rights. An example of infringement is burning a CD. An employer has copyright ownership in any material created by an employee during employment. For example, Mattel (the creators of Barbie dolls) has copyright ownership in the designs of Bratz dolls as the creator designed the dolls during his employment with Mattel.

As an author/creator, a technological protection measure (TPM) will prevent or at least inhibit copyright infringement. Examples include, DVD encryption, digital watermarking on a website and a PDF document that will not allow the reader to print the document. Circumventing a TPM or making or commercial dealing in a device that circumvents a TPM is an infringement.

Electronic rights management information (ERMI) enables a copyright owner to monitor every instance of access to and use of copyright material in a digital environment. Altering or remove any of the ERMI is an infringement. This is known as electronic rights management information.

Finally, whilst there is no registration requirement a copyright notice ( ©, authors name and date of publication) is advisable.

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