Men at Work

Copyright

This lecture is an introduction to copyright from the perspective of a publisher and editor who has had to work within the law but is not an expert in the law.

Much of the material is derived from www.oznetlaw.net (a site which, unfortunately, does not seem to be operating any more!)

Another very useful site is www.copyright.org.au/

Copyright "subsists in the expression of ideas and not the ideas in themselves".

Practically it is used to protect the economic rights of writers and other creators of 'works'

General Description from OzNetLaw

Copyright protects from unauthorised reproduction or adaptation of original creations such as books, computer programs, scripts, paintings, sculptures, drawings, photographs, music, film, video, broadcasts and the choreography of a performance. The copyright owner has the exclusive right to copy, publish, perform, broadcast, adapt (for example, a screenplay from a novel), sell, license or import copyright protected creations.

Names and titles are not generally protected by copyright – protection occurs via registration as a trademark

Historical Source of Copyright

Historically the notion of copyright comes from a source that has very different parameters from the present copyight law

Stationer's copyright 17C

Wikipedia

As the "menace" of printing spread, governments established centralized control mechanisms, [ 11 ] and in 1557 the British Crown thought to stem the flow of seditious and heretical books by chartering the Stationers' Company . The right to print was limited to the members of that guild, and thirty years later the Star Chamber was chartered to curtail the "greate enormities and abuses" of "dyvers contentyous and disorderlye persons professinge the arte or mystere of pryntinge or selling of books." The right to print was restricted to two universities and to the 21 existing printers in the city of London , which had 53 printing presses . . . .

In England the printers, known as stationers, formed a collective organisation, known as the Stationers' Company . In the 16th century the Stationers' Company was given the power to require all lawfully printed books to be entered into its register. Only members of the Stationers' Company could enter books into the register. This meant that the Stationers' Company achieved a dominant position over publishing in 17th century England (no equivalent arrangement formed in Scotland and Ireland). But the monopoly came to an end in 1694, when the English Parliament did not renew the Stationers Company's power. [ 6 ]

At this stage there is no publishing industry and the printers/stationers were in business to reproduce already existing books. There was little sense of an author being protected by copyright.

Copyright changes as the publishing industry emerges with a thirst for new maniscripts and living authors license companies the right to copy their works.

Worth comparing this period with the present period in which ePublishing is emerging.

A lot of repurposing of old (out of copyright material) while no-one has really quite worked out how the ePub industry will look when it is fully established.

When does copyright arise?

• Copyright comes into existence automatically in relation to an original creation in Australia or in a country whose nationals are entitled to copyright protection in Australia.
• The copyright owner is the person who first reduces an original idea into a permanent form.
• Copyright protects the original expression and not the ideas themselves.
• Copyright in unpublished works does not begin to run until they are published.

Term of protection

Subject to exceptions, protection generally runs for the life of the author plus 70 years from the year of the author's death or 70 years from the year of first publication.

The Mickey Mouse Law.

Exceptions

Fair dealing

The use of copyright material for the following purposes generally does not constitute an infringement of copyright.

• research or study,
• criticism or review,
• reporting of news and
• professional advice given by a legal practitioner or patent attorney

General comments

A copyright owner does not control the medium in which the idea is expressed, for example, a person may freely buy then sell the same book, but they cannot copy the contents of the entire book without copyright permission.

If an employee creates an original work for employer, then as a general principle (subject to exceptions) the employer owns the copyright in the work created.

Generally, if a person commissions a person other than an employee to create an original work, the person does not own that work unless the creator formally assigns their copyright to the person. The assignment must be in writing and signed by or on behalf of the creator.

Copyright ownership may be joint (a work produced by two or more authors) or divided (eg unless otherwise assigned, a newspaper has copyright ownership of work created by a journalist and published in the newspaper, but the journalist retains copyright ownership with respect to publication of the material in a book or film).

Copyright management best practice

Attach to creatively produced work the following:

• copyright symbol ©
• the name of the author
• year of first publication; and
• include any terms of use

The © symbol gives notice to the public of your claim to copyright ownership and gives the work reciprocal protection under the laws of other countries who are signatories to the Universal Copyright Convention.

Identify the ownership of copyright for all third party content used on the website including text, graphics, photographs, animations, film, music compositions, sound recordings, software and database material.

Licensing of copyright

Assignment v licensing

Moral copyright

http://www.copyright.org.au/information/cit024/wp0020

Limited rights exist in addition to copyright and are inalienable. Infringement can occur in these ways

• failure to attribute the creator
• false attribution of a work
• treating work in a derogatory way

Men at Work to Pay Five Percent of Royalties

In a much anticipated decision, Justice Jacobson in the Federal Court today handed down his judgment that the publisher and writers of Down Under will be required to pay Larrikin Music five percent of their APRA/AMCOS income earned since 2002. Justice Jacobson found that the figures initially put forward by Larrikin were ‘excessive, overreaching and unrealistic' (at [224]).In determining the damages, Justice Jacobson focused on the musical significance of Kookaburra as it is used in Down Under. It was found that this contribution was relatively small, (at [137]), which led to a substantially more modest finding in damages. See the full text of the decision at: http://www.austlii.edu.au/au/cases/cth/FCA/2010/698.html more »

 

Difference between expression and ideas

Rothnie, Warwick --- "Idea and Expression in a Digital World" [1998] JlLawInfoSci 5; (1998) 9(1) Journal of Law, Information and Science 59