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Panpa Bulletin : July 2006
22 | PANPA BULLETIN July 2006 MEDIA LAW MattheW laMB Most journalists and pub- lishers have a rudimen- tary understanding of copyright law, whether picked up on the job or through tertiary level media law subjects. Understanding the basics of copyright facilitates better pro- tection and exploitation of con- tent but also discourages infring- ing conduct. In this and my next column I will outline these basics and hopefully correct some common misconceptions about copy- right's application. This column will focus on what copyright comprises, when it will subsist and who owns it. Copyright is a bundle of exclu- sive rights to deal with particu- lar subject matter in prescribed ways. Copyright in Australia is gov- erned by the Copyright Act 1968, a Commonwealth statute. The copyright rights arise auto- matically on creation of content and publication is not necessary. In Australia, there is no require- ment to register the content un- like other intellectual property such as patents or trade marks. For copyright to subsist in un- published material, the author must be a 'qualified person' - an Australian citizen, an Austral- ian protected person under the Australian Citizenship legisla- tion or resident in Australia. For published materials, copyright will subsist in those materials if the author is a 'qualified person' and first publication took place in Australia. Copyright subsists in 'origi- nal' works -- those originating from an author's skill, judgment or labour. It aims to protect the expression of ideas or concepts rather than the ideas or concepts themselves. The quality of a work is irrelevant. So what categories of ma- terial are covered by the Copyright Act? The Act applies to works or subject matter other than works. Works include literary, dra- matic, musical and artistic works. Subject matter other than works covers sound re- cordings, cinematograph films, TV and sound broadcasts and published editions of works. Of most relevance to news- papers are literary and artistic works. While it is probably obvious what a literary work will be in a newspaper context, the range of materials that may be covered is actually extremely broad. Less obvious examples of lit- erary works include computer programs and compilations, each of which may be relevant to publishers. Although a compilation will often comprise otherwise un- protected facts, figures or sym- bols, copyright may subsist in the compilation as a result of the skill, labour or judgment in- volved in its compiling. An obvi- ous example of a protected com- pilation is the Yellow or White Pages. The question of what will or will not attract copyright protec- tion becomes particularly rel- evant in the context of infringe- ment. One of the common miscon- ceptions about copyright is that it does not apply to material published on the internet. The fact that such material can be accessed everywhere and can be easily reproduced has led some to mistakenly adopt this belief. Material published online at- tracts the same copyright pro- tection as any other original form of expression. It may not always be clear, however, which country's copyright laws apply or who owns copyright in the relevant material. The Copyright Act sets out a range of exclusive copyright rights. For works, these include the rights to reproduce in mate- rial form, to communicate to the public and to publish. Similar rights apply to sounds record- ings, TV and sounds broadcasts and cinematograph films. By exercising these rights to the exclusion of others, whether themselves or by permitted third parties through assignments or licenses, copyright owners are able to commercially exploit their creations. Copyright may be assigned in writing to a third party, whether partially or in full. A partial as- signment may be limited as to time, geographical area or to one or more of the exclusive rights comprised in the copyright. The effect of an assignment is to pass ownership of the copyright from one party to another. As a general rule, the first own- er of copyright in a work will be the author -- the person who cre- ated the work. There are exceptions to this rule under the Copyright Act. For example, where a work is created by a person in the course of his or her employment, the employer is generally entitled to the whole of the copyright. Conversely, if the work is created under a contract for services by an independent contractor or freelancer, the person who com- missioned the work will not gen- erally be owner. There is an important excep- tion for literary, dramatic or ar- tistic works made by an author under the terms of his or her employment by the proprietor of a newspaper, magazine or similar periodical (although dif- ferent rules apply if the work was created before July 30, 1998). Where the work is made for inclusion in the newspaper, magazine or similar periodical, the proprietor is owner. How- ever, reproduction for the pur- pose of inclusion in a book or a hard copy fax made directly or indirectly from the hard copy edition (excluding reproduction by the proprietor for a purpose connected with publication of the relevant newspaper, maga- zine or periodical), are rights held by the employed journalist or artist. For sound recordings, the maker of the recording is owner and similarly with a cinemato- graph film. These rules of ownership are subject to any agreement to the contrary. Accordingly, em- ployment agreements or other instruments in writing can be- come relevant when trying to establish who owns copyright in a work. The absence of a copyright register can make locating a copyright owner difficult. Use of the © symbol at the end or be- ginning of a work is a well recog- nised method for alerting others to the fact of copyright owner- ship. The laws relating to duration are fairly detailed and are out- side the scope of this article. For most works created after January 1, 2005, copyright will last for the life of the creator plus 70 years. Matthew lamb is the General Counsel, australian associated Press As a general rule, the frst owner of copyright in a work will be the author That work is mine Copyright law has its own peculiarities and truly understanding it means you can use and protect your content more effectively writes Matthew Lamb.