¹û¶³Ó°Ôº

Page contents

Estimated reading time for this page: 5 minutes 

​What it is

Copyright provides legal protection to creators of original work by preventing other people from using that work without permission.

Put another way: if you create it, you own it (and control what can be done with it).

When it applies

Copyright arises automatically at the point at which a person (known as the ‘copyright owner’ or ‘author’) creates a qualifying piece of work. There is no need for the copyright owner to take steps to register their copyright.

Who/what it applies to

Copyright grants the copyright owner the exclusive right to use, lend, copy, communicate or adapt the copyrighted work.

It prohibits any third party from exercising these rights over all, or a substantial part, of the work - unless they have permission (by way of a licence) from the copyright owner to do so.

A wide range of work is protected by copyright law, including:

• original literary, dramatic, musical or artistic works
• sound recordings, films or broadcasts
• the typographical arrangement of published editions

A qualifying work is original (i.e. not copied) and shows a degree of labour, skill or judgment by the author – it's the author’s own intellectual creation.

Core principles

1. Copyright arises automatically in respect of original work.
2. It applies to the expression of an idea and not the idea itself (e.g. a film, but not the general idea behind the film).
3. A copyright owner has the exclusive right to be identified as the author of the work and to object to derogatory treatment of the work. See moral rights for more information.
4. Third parties are prohibited from the unauthorised use of the copyrighted work although there are exceptions for, among other things, educational use. See ‘copyright exceptions’ for more information.
5. Copyright does not last forever. For literary, dramatic, musical or artistic works copyright lasts for the artist’s lifetime plus 70 years (different time periods apply to different types of work e.g. copyright in typographical arrangements lasts for 25 years from the year of publication).

Why it matters (risks/opportunities)

Risks

Without an understanding of when copyright arises:

• copyright owners may not know when they can enforce or monetise their rights
• authors risk inadvertently infringing other peoples’ copyrighted work
• disputes may arise between collaborators as to the rightful pro rata allocation of copyright ownership

Opportunities

Copyright:

• encourages artistic endeavours as it allows a person to protect their work against unauthorised use
• allows copyright owners to control third party use by granting a licence for specific uses of the work or by transferring the copyright in full by way of assignment
• supports artistic integrity by ensuring work is only used as intended by the original author

Key legal considerations/elements

Originality

The work must be original (i.e. unlike other work already created) and demonstrate some degree of labour, skill and judgment that has brought about the originality.

Authorship

The person claiming copyright must be the ‘author’ of that work i.e. the person who created it (unless the work was created by an employee as part of their employment relationship – see FAQs).

Joint authorship

Where two or more people collaborate to create the work, and their contributions are indistinguishable, they are likely joint authors who both share in the copyright ownership (which may or may not be in equal shares).

Economic and moral rights

The copyright owner is granted both economic rights (e.g. to copy, issue, lend, perform, communicate or adapt the work) and moral rights (e.g. to have the work attributed to them and to object to derogatory treatment of the work).

Infringement

Copyright is infringed by a third party’s unauthorised exercise of the copyright owner’s rights in respect of the whole, or a substantial part, of the work (whether directly or indirectly).

Key commercial considerations/elements

Originality and authorship are key – creators should keep records of their work product to help evidence authorship should a dispute arise.

A copyright owner may use the ‘©’ symbol, followed by their name and the year of creation, to put people on notice that they hold the copyright in a particular work. However, there is no obligation to do so.

If commissioned to create a piece of work, the copyright generally remain with the author of the work, unless otherwise agreed in writing. To avoid dispute, commission agreements should clearly set out the parties’ intentions with regard to copyright ownership.

When collaborating on a project, both parties should be clear on copyright ownership at the outset and, ideally, document this in a collaboration agreement. Collaborators (co-authors) need not have an equal share in copyright – this can be allocated according to contribution e.g. 80/20. Keep a record of each person’s respective work throughout the project.

FAQs

Can I transfer my copyright to another person?

Yes. Copyright can be transferred (by assignment) or licensed to a third party.

I created the work as part of my employment – am I the copyright owner?

Ordinarily, no. Where the work in question is made by an employee in the course of their employment relationship their employer is the owner of any copyright (subject to any agreement to the contrary).

What is the difference between intellectual property rights and copyright?

Copyright is one type of intellectual property. Intellectual property is an umbrella term for a number of legal rights including trademarks, patents and copyright (among others).

Does similar, but not identical, work infringe copyright?

Potentially. Copyright is infringed if a ‘substantial part’ of the original work is copied, distributed or otherwise used in an unauthorised manner. ‘Substantial part’ has been interpreted to mean a ‘qualitatively significant’ part of the work. As such, it could be a small but critically important aspect of the work. Ultimately, this will be a question for the courts to decide.

What can the courts do if someone infringes my copyright?

Courts may issue an injunction to stop the unauthorised use, award damages (financial payment) to the copyright owner and order the return or destruction of any infringing items.