What is Copyright? Protecting Creativity

July 25, 2018

In my last blog, I gave you an overview of Intellectual Property. Today, we are going to dive deeper into copyright, finding out what can be protected and what is not covered by copyright law.

Copyright as a legal term

The Australian Copyright Agency  defines copyright as “a form of intellectual property that protects the original expression of ideas.” That is, it protects your rights as a creator to control how your creation is used. Where do those rights come from?

First, it is important to remember that these are intangible rights – they have no physical form… and they only come into existence because the law says they exist! In Australia, that law is the Copyright Act 1968 (Cth).

Section 8 of the Copyright Act says that “copyright does not subsist otherwise than by virtue of this Act.” This means that there is no such thing as copyright outside the legislation.

Legislation is the written law that is created by the Parliament, which is the legislative branch of our government. Each country (and sometimes each state) makes its own legislation, and therefore has its own rules about copyright. This can be very confusing given the global nature of information sharing today, and is one of the greatest barriers to copyright enforcement.

Let’s start by looking at what the Australian copyright laws say.

Copyright law in Australia

Copyright actually comes into existence in Australia in section 31 of the Copyright Act 1968.

This section says that copyright over literary, dramatic, musical or artistic works is:

  • an exclusive right – that means the rights outlined below can only be exercised by the owner of the copyright
  • to reproduce the work in a material form – that means, to copy it for any form of storage
  • to publish the work, and
  • to communicate the work to the public

For literary, dramatic and musical works, the copyright owner also has the exclusive right to:

  • perform the work in public
  • make an adaptation of the work, or
  • to do any of the things mentioned above in relation to the adaptation.

In addition to these economic rights – because what you are actually protecting here is the exclusive right to make money from a work, or build your reputation in the work – you also have moral rights. Your moral rights include:

  • the right of attribution – that is, the right to be recognised as the author of the work
  • the right not to have authorship falsely attributed – that is, no one can claim you created a work that you didn’t create, or claim that they created a work they didn’t create, and
  • the right of integrity of authorship – that is, the right not to have anything done to the work, including a material distortion, mutilation, or material alteration, that is prejudicial to the author’s honour or reputation.

These rights come into existence automatically in Australia when you create a new work (which is different, for example, to the USA, where you have to register a new work before you can claim copyright over it. I will talk more about international copyright issues in a future blog…)

What is (and is not) covered by copyright?

In one of those lovely circuitous legal definitions, the Act tells us that “literary work” means “a literary work in which copyright subsists.” What they actually mean is anything that is written, spoken or sung (and that is not a dramatic or musical work). This includes your blogs, website pages, ebooks, course content, video scripts, comments and posts you make on social media… Likewise, an “artistic work” is any graphic work, whether that be an image, painting, drawing, photograph, collage, diagram, plan, and regardless of whether it was produced digitally or by hand. As a result, you can see that pretty much all of the content you produce in your business comes under the protection of copyright.

However, there are some things which do not come under the definition of copyright. Single words and phrases are one example. These are not significant or substantial enough to count as a literary work. There needs to be a human author – so that painting your dog did with her tail may not be covered by copyright. This also rules out works where there is no identifiable author, such as phone books. The work needs to be fixed – made material – in some way – so that chat you had at the local cafe where you told your friend all about your latest business idea? Not copyright. Nor are the ideas you shared, because ideas and thoughts can’t be copyright either. It is the material expression of the idea that is copyright, not the idea itself.

You also need to remember that a single work can have multiple levels of ownership. For example, when you buy a painting to hang on your office wall, you don’t usually buy the copyright… so technically you should get permission from the artist before you feature it as a backdrop to your videos! It’s a bit like when you commission an artist to design a logo for you. They generally sell you an exclusive license to use your logo wherever it would be beneficial to your business… but you don’t actually own the copyright in that logo, and you might need to get the designer’s permission before changing it or using it in a way that was not a part of the original agreement – such as printing it on t-shirts for sale to your customers.

How I can help

Your head is probably whirling now as you think about all the different ways in which copyright affects your business. If you are concerned about copyright in the context of your business, book an IP Strategy Session where I can answer all your questions.

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