Copyright, Trademarks and Intellectual Property Law

Intellectual property law is both complex and interesting, focusing on incentivising artists, creators and inventors to contribute to the progression of arts and science.  This is achieved by protecting the exclusive rights of an individual and affording them control over the use of their works.

Copyright Generally

The laws relating to copyright in Australia are governed by the Copyright Act 1968.  These laws aim to protect artistic and creative works, including:

• literary works (i.e. novels and articles)
• music and sound recordings;
• drawings and plans
• computer programs; and
• films

However, copyright does not extend to:

• ideas, concepts, styles, information or techniques (which instead fall within the scope of patent laws);
• names, titles or slogans (although these can be protected through trademark); or
• people

Copyright applies automatically once the subject works have come into existence; there is no requirement that they be published or registered.  Copyright laws offer an incentive to creators to invest their time and skills by affording them some level of control over the use of their works.  Generally speaking, the creator will be the first owner of the copyright (with limited exceptions, which are discussed in detail below) and as a result, will enjoy an exclusive right over their works.  A copyright owner may also assign (i.e. transferring ownership by way of sale) or licence (that is, permitting someone else to use the copyright material, usually for a fee) their rights to someone else.

Copyright and Employment

Generally speaking, an employer will own the copyright of creative or artistic works made by an employee in the course of their employment, subject to any contrary provision in an employment contract. Conversely, contractors (e.g. freelancers) will generally own copyright in any commissioned works, provided they are for commercial purposes. However, copyright for privately commissioned freelance works (such as wedding photography) will be owned by the person commissioning those works, and not the freelancer (unless otherwise agreed).

Copyright and Social Media

Although the creator of original content posted on a social media platform will retain ownership of that content, most of those sites are permitted to re-publish such materials.  For example, Facebook's Statement of Rights (which users agree to upon creating a Facebook account) provide that users give Facebook a "non-exclusive" and "royalty free" licence to use any intellectual property posted to the site.  Although this licence extends to other Facebook users, the licence only applies to the use of content within the Facebook platform.

Penalties for Copyright Infringement

Copyright infringement is an offence under the Copyright Act 1968 and may result in severe penalties.  For example, corporations found guilty of copyright infringement may be fined up to $577,500.00, whilst individuals may receive a fine of up to $115,500.00 and term of imprisonment of up to five years.  Further, a copyright owner may be able to seek the assistance of the Courts to protect their rights, such as seeking an injunction or an order for an account of profits.

Although the laws relating to copyright are fairly comprehensive, there are many misconceptions as to what conduct amounts to copyright infringement.  Examples of copyright infringement include the following:

• unauthorised reproduction of copyright material, including a 3D reproduction of a drawing (e.g. building a house from a house plan);
• possessing infringing copies of copyright material;
• selling or distributing infringing copies of copyright material; and
• failing to acknowledge the copyright owner as the creator of the work.

It is therefore important to ensure that you understand your rights and obligations with respect to copyright laws.